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The 
NORTH CAROLINA 

REGISTER 



r^ORTH , 



A 



COMi 

TITUl llt/j 

TIOmI II i;; 



IN THIS ISSUE . . 

EXECUTIVE ORDERS 

PROPOSED RULES 
Agriculture 



RECEIVED 



AUG 6 1992 



LAW LIBRARY 



Cosmetic Art Examiners 

Cultural Resources 

Dietetics / Nutrition 

Economic and Community Development 

Environment, Health, and Natural Resources 

Housing Finance Agency 

Human Resources 

Justice 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

CONTESTED CASE DECISIONS 

ISSUE DATE: August 3, 1992 

Volume 7 • Issue 9 • Pages 903-965 



TNFORMATTON ABOUT THE NORTH CAROLINA REGTSTER AND A DMTNTSTR ATTVF (-(^pp 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North CaroUna Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 276 11 -7447. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule tliat 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may i 



temporary rules. Within 24 hours of submission to OAH 
Codifier of Rules must review the agency's written stateme 
findings of need for the temporary rule pursuant to the provisio 
G.S. 150B-21.1. If the Codifier determines that the fmdings 
the criteria in G.S. 150B-21.1, the rule is entered into the NCA f 
the Codifier determines that the fmdings do not meet the cri 
the rule is returned to the agency. The agency may suppleme 
findings and resubmit the temporary rule for an additional re 
or the agency may respond that it will remain with its ii 
position. The Codifier, thereafter, will enter the rule inti 
NCAC. A temporary rule becomes effective either whei 
Codifier of Rules enters the rule in the Code or on the 
business day after the agency resubmits the rule without ch< 
The temporary rule is in effect for the period specified in the n 
180 days, whichever is less. An agency adopting a temporary 
must begin rule-making procedures on the permanent rule 
same time the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE CO 



The North Carolina Administrative Code (NCACj 
compilation and index of the administrative rules of 25 
agencies and 38 occupational licensing boards. The N( 
comprises approximately 15,000 letter size, single spaced pag 
material of which approximately 35% of is changed aunt 
Compilation and publication of the NCAC is mandated by 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state ag 
is assigned a separate title which is further broken dow 
chapters. Title 21 is designated for occupational licensing boari 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum co 
two dollars and 50 cents (S2.50) for 10 pages or 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totali 
excess of 15,000 pages. It is supplemented moi 
with replacement pages. A one year subscription t 
full publication including supplements car 
purchased for seven hundred and fifty do 
(S750.00). Individual volumes may also be purcl 
with supplement service. Renewal subscription 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC shou 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North CaroUna Register is cited by volume, issue, 
number and date. 1:1 NCR 101-201, April 1, 1986 re fe 

Volume 1, Issue 1, pages 101 through 201 of the North Car 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office 
Administrative Hearings, ATTN: Rules Division, P.( 
Drawer 27447, Raleigh, North Carolina 27611-7447, (91 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



ilian Mann III, 

Director 

imes R. Scarcella Sr, 

Deputy Director 

lolly Masich. 

Director of A PA Services 



taff: 

uby Creech, 

Publications Coordinator 

eresa Kilpatrick. 

Editorial Assistant 

;an Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDER 

ExecuUve Order 171 903 

II. PROPOSED RULES 

Agriculture 

Plant Industry 904 

Cultural Resources 

U.S.S. North Carolina 

Battleship Commission 911 

Economic and Community 

Development 

Division of Community 

Assistance 909 

Environment, Health, and 

Natural Resources 

Governor's Waste Management 
Board 920 

Sedimentation Control 920 

Wildlife Resources Commission . . 922 
Human Resources 

Social Services Commission 911 

Independent Agencies 

N C. Housing Finance Agency . . . 929 
Justice 

N.C. Alarm Systems Licensing 
Board 919 

Private Protective Services 918 

Licensing Boards 

Cosmetic Art Examiners 922 

Dietetics/Nutrition 924 

in. RRC OBJECTIONS 931 

IV. RULES INVALIDATED BY 

JUDICIAL DECISION 934 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 935 

Text of Selected Decisions 

91 ABC 0799 939 

91 DHR 0964. 0966 946 

91 EHR 0818 951 

92 OSP 0679 961 

VL CUMULATIVE INDEX 963 



NORTH CAROLINA REGISTER 

Publication Schedule 

(August 1992 - December 1993) 



Last Day Earliest 
for Elec- Date for 



Earliest 

Date for Last Dav *Earliest 



Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effectiv 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


tfjfjfjfjf** 


******* 


******* 


******* 


******* 


******* 


******* 


08/03/92 


07/13/92 


07/20/92 


08/18/92 


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09/20/92 


11/02/92 


08/14/92 


07/24/92 


07/31/92 


08/29/92 


09/13/92 


09/20/92 


1 1/02/92 


09/01/92 


08/11/92 


08/18/92 


09/16/92 


10/01/92 


10/20/92 


12/01/92 


09/15/92 


08/25/92 


09/01/92 


09/30/92 


10/15/92 


10/20/92 


12/01/92 


10/01/92 


09/10/92 


09/17/92 


10/16/92 


10/31/92 


11/20/92 


01/04/93 


10/15/92 


09/24/92 


10/01/92 


10/30/92 


11/14/92 


1 1/20/92 


01/04/93 


11/02/92 


10/12/92 


10/19/92 


11/17/92 


12/02/92 


12/20/92 


02/01/93 


11/16/92 


10/23/92 


10/30/92 


12/01/92 


12/16/92 


12/20/92 


02/01/93 


12/01/92 


1 1/06/92 


11/13/92 


12/16/92 


12/31/92 


01/20/93 


03/01/93 


12/15/92 


11/24/92 


12/01/92 


12/30/92 


01/14/93 


01/20/93 


03/01/93 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/31/93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/03 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


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09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


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08/24/93 


08/31/93 


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12/01/93 


10/01/93 


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10/16/93 


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11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


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01/04/94 


11/01/93 


10/11/93 


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11/16/93 


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02/01/94 


11/15/93 


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02/01/94 


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12/15/93 


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01/20/94 


03/01/94 



* The "Earliest Effective Date" is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission Approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



EXECUTIVE ORDER NUMBER 171 
EXTENSION OF EXECUTIVE ORDER 45 

By the authority vested in me as Governor by the Constitution and laws of North Carolina, IT IS 
3RDERED: 

Executive Order Number 45, as reissued and extended by Executive Order Number 93. and as 
imended and extended by Executive Order Number HI, is reissued and extended for a period of two years, 
jniess terminated earlier or extended by further Executive Order. 

This Executive Order shall be effective immediately. 

Done in Raleigh, North Carohna, this the 13th day of July, 1992. 



EXECUTIVE ORDER 



7:9 NORTH CAROLINA REGISTER August 3, 1992 go3 



PROPOSED RULES 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

iS otice is hereby given in accordance with G.S. 150B-21.2 that the N.C. Plant Conservation Board inten 
to amend rule(s) cited as 2 NCAC 48F .0301 and .0302. 

1 he proposed effective date of this action is November 2. 1992. 

1 he public hearing will be conducted at 10:00 a.m. on August 19, 1 992 at the Board Room, Agriculture Bld^ 

2 W. Edenton St., Raleigh, NC 27601. 

Jxeason for Proposed Action: To change protected status of several plant species. 

X^omment Procedures: Interested persons mav present statements either orally or in writing at the pub: 
hearing or in writing prior to September 2, 1992 by mail addressed to Cecil Frost, Secretary of the Nor 
Carolina Plant Conservation Board, P.O. Box 27647, Raleigh, NC 2761 1-7647. 

CHAPTER 48 - PLANT INDUSTRY 

SUBCHAPTER 48F - PLANT CONSERVATION 

SECTION .0300 - ENDANGERED PLANT SPECIES LIST: THREATENED PLANT SPECIES 
LIST: LIST OF SPECIES OF SPECIAL CONCERN 

.0301 ENDANGERED PLANT SPECIES LIST 

The North Carolina Plant Consenation Board hereby establishes the following list of endangered plant specie 

(1) Aeschynomene virginica — (L.) B.S.P. 
Sensitive Joint\etch; 

(2) Amorpha georgiana var. georgiana - Wilbur 
georgia indigo-bush. 

(3) (3-)Arethusa bulbosa ~ L. 
Bog Rose; 

(4) (^Asplenium heteroresiliens - W. H. Wagner 
Carolina Spleemvort; 

(5) {4)Asplenium monanthes — L. 
Single-sorus Spleenwort; 

(6) fS^Aster depauperatus - Femald 
Serpentine Aster; 

(7) (6)Bry ocrumia andersonii -- (Bartr.) Anders. 
Gorge Moss; 

(8J fT^Buckleya distichophylla -- (Nuttall) Torrey 

Piratebush; 

(9) (^Calamagrostis cainii - Hitchcock 
Cain's Reed Grass; 

(10) (9)Calaniovilfa brevipilis ~ (Torrey) Scribner 
Pine Barrens Sandreed; 

(11) (40^Cardamine micranthera — Rollins 
Small-anthered Bittercress; 

(12) (44^Carex aenea ~ Femald 
Femald's Hay Sedge; 

(13) f4-J)Carex barrattii — Schweinitz and Torrey 
Barratt's Sedge; 



904 7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



(14) (i^Carex manhartii - Biyson 
Manhart's Sedge; 

(15) (i4)Carex schvveinitzii ~ Dewey ex Schweinitz 
Schweinitz's Sedge; 

(16) (4-^Chrysoma pauciflosculosa -- (Michx.) Greene 
Woody Goldenrod; 

(17) (i4)Conioselinum chinense - (L.) B.S.P. 
Hemlock Parsley; 

(18) (4-7)Cystopteris tennesseensis — Shaver 
Tennessee Bladderfem; 

(19) fi«)Dalibarda repens -- L. 
Robin Runaway; 

(20) (i^Delphinium exaltatum - Alton 
Tall Larkspur; 

(21) (2©)Echinacea laevigata - (Boynton and Beadle) Blake 
Smooth Coneflower; 

(22) {34^Eriocaulon lineare -- Small 
Linear Pipewort; 

(23) {23)Eupatorium resinosum ~ Torrey ex DC 
Resinous Boneset; 

(24) Filipendula rubra -- (Hill) B.L. Robins. 
Queen-of-the-Prairie; 

(25) {i^Gentianopsis crinita -- (Froelich) Ma 
Fringed Gentian; 

(26) {i4)Geum radiatum - Michaux 
Spreading Avens; 

(27) (2^Grammitis nimbata - (Jenm.) Proctor 
Dwarf Polypody Fern; 

(28) (2^Helianthus schweinitzii --T. & G. 
Schweinitz's Sunflower; 

(29) {27)Hexastylis contracta ~ Blomquist 
Mountain Heartleaf; 

(30) (i^Hexastylis naniflora ~ Blomquist 
Dwarf-flowered Heartleaf; 

(31) (i^Houstonia purpurea var. montana — (Small) Terrell 
Mountain Bluet; 

(32) Hudsonia montana ::; Nutt. 
Mountain Golden Heather; 

(33) (S^Hydrastis canadensis -- L. 
Goldenseal; 

(34) (34)Isolria medeoloides ~ (Pursh) Raf. 
Small Whorled Pogonia; 

(35) (^Juncus trifidus ssp. carolinianus — Hamet Ahti 
One-flowered Rush; 

(36) (34)Kalmia cuneata ~ Michaux 
White WickT; 

(37) {^Lindera mehssaefolia ~ (Walter) Blume 
Southern Spicebush; 

(38) f3^Lindera subcoriacea — Wofford 
Bog Spicebush; 

(39) (^Lophiola aurea ~ Ker-Gawl. 
Golden Crest; 

(40) (^^Lysimachia asperulaefolia ~ Poiret 
Rough-leaf Loosestrife; 

(41) (^S)Lysimachia fraseri ~ Duby 



7:9 NORTH CAROLINA REGISTER August 3, 1992 gos 



PROPOSED RULES 



Eraser's Loosestrife; 

(42) f^Minuartia godfreyi - (Shinners) McNeill 
Godfrey's Sandwort; 

(43 ) {40)Minuartia uniflora -- (Walter) Mattfield 
Single-flowered Sandwort; 

(44) f44^Muhlenbergia torreyana - (Schultes) Hitchcock 
Torrey's Muhly; 

(45) (4^Myrica gale -- L. 
Sweet Gale; 

(46) f4^Narthecium americanum - Ker 
Bog Asphodel; 

(47) (44)Orbexilum macrophyllum - (Rowlee ex Small) Rydberg 
Bigleaf Scurfpea; 

(48) {4^)Orthotrichum keeverae ~ Crum & Anders. 
Keever's Bristle Moss; 

(49) (46)Ox7polis canbyi -- (Coult. & Rose) Fern. 
Canby's Cowbane; 

(50) f47)Pamassia caroliniana - Michaux 
Carolina Grass-of-Pamassus; 

(51) {4^Pellaea wrightiana - Hooker 
Wnght's Cliff-brake Fern; 

(52) Plagiochila caduciloba 
A Liverwort; 

(53) {49)Plantago cordata ~ Lam. 
Heart-leaf Plantain; 

(54) (^Plantago sparsiflora - Michaux 
Pineland Plantain; 

(55) (54^Platanthera integrilabia ~ (Correll) Leur 
White Fringeless Orchid; 

(56) (^2)Poa paludigena ~ Femald & Wiegand 
Bog Bluegrass; 

(^ Portulaca smallii — P. Wil s on 
Small' s Portulaca; 

(57) (54)Pteroglossaspis ecristata ~ (Femald) Rolfe 
Eulophia; 

(58) f^^^Ptilimnium nodosum ~ (Rose) Mathias 
Harperella; 

(59) f5^P> xidanthera barbulata var. brevifolia -- (Wells) Ahles 
Wells' P\xie-moss; 

(60) (^^Rhus michauxii ~ Sargent 
Michaux's Sumac; 

(61) Rhvnchospora macra ~ (C.B. Clarke) Small 
Large Beak Sedge; 

(62) Rudbeckia heliopsidis - Torr. & Gray 
Sun-facing coneflowen 

(63) {^Sagittana fasciculata ~ E.O. Beal 
Bunched Arrowhead; 

(64) (^Sarracenia jonesii ~ Wherry 
Mountain Sweet Pitcher Plant; 

(65) (6d)Sarracenia oreophila - (Kearney) Wherry 
Green Pitcher Plant; 

(66) (^4^Schwalbea americana — L. 
Chaffseed; 

(67 ) (6i)Sedum pusillum — Michaux 
Puck's Orpine; 



906 7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



(68) {63^)Sedum rosea -- (L.) Scop. 
Roseroot; 

(69) (64)Senecio schweinitzianus - Nuttall 
Schweinitz's Groundsel; 

(70) {65)Shortia galacifolia - T. & G. 
Oconee Bells; 

(71) {66)Sisyrinchium dichotomum — Bicknell 
Reflexed Blue-eyed Grass; 

(72) (4^Solidago ptarmicoides ~ (Nees) Boivin 
Prairie Goldenrod; 

(73) {68)Solidago pulchra - Small 
Carolina Goldenrod; 

Blue Ridge Goldenrod; 

(74) {69)Solidago spithamaea — M.A. Curtis 

(75) {TO)Solidago vema -- M.A. Curtis ex T. & G. 
Spring-flowering Goldenrod; 

(76) (74-)Spiraea virginiana ~ Britton 
Virginia Spiraea; 

(77) {73)Sporobolus heterolepis - Gray 
Prairie Dropseed; 

(78) {?5)Stylisnia pickeringii var. pickeringii — (Torrey ex M.A. Curtis) Gray 
Pickering's Morning Glory; 

(79) (74)Thalictrum cooleyi ~ AhJes 
Cooley's Meadowrue; 

(80) Tortula ammonsiana 
Amnion's Tortula; 

(81) {;^)Trillium pusillum - Michaux 
Carolina Least Trillium; 

(82) p6)Trisetum spicatum var. moUe - (Michaux) Beal 
Soft Trisetum. 

'tatutory Authority G.S. 106-202.15. 

9302 THREATENED PLANT SPECIES LIST 

The North Carolina Plant Conservation Board hereby establishes the following list of threatened plant species: 

(1) Amaranthus pumilus — Raf. 
Seabeach Amaranth; 

(2) Amorpha georgiana var. confusa - Wilbur 
Savanna Indigo-bush; 

(3) (2)Cacalia mgelia ~ (Shuttl. ex Chapm) Baikley & Cronq. 
Rugel's Ragwort; 

(4) (3-)Camassia scilloides - (Raf.) Cory 
Wild Hyacinth; 

(5) (4)Carex chapmanii — Steudel 
Chapman's Sedge; 

(6} (^Carex conoidea - Willd. 
Cone-shaped Sedge; 

(7) (^Carya myristicaeformis — (Michaux f ) Nuttall 
Nutmeg Hickory; 

(8) {?)Eleocharis halophila — Fern. & Brack. 
SaU Spikerush; 

(9) {8)Fimbristylis perpusilla ~ Harper ex Small & Britton 
Harper's Fringe-rush; 

(10) (9)Geum geniculatum - Michaux 
Bent Avens; 



7:9 NORTH CAROLINA REGISTER August 3, 1992 907 



PROPOSED RULES 



(11) (+&)Glyceria nubigena - W.A. Anderson 
Smok>' Mountain Mannagrass; 

(12) f44)Gymnoderma lineare ~ (Evans) Yoshimura & Sharp 
Gnome Finger Lichen; 

(13) f«)Helonias buUata -- L. 
Swamp Pink; 

(4^ Hud s onia montana Nuttall 

Mountain Gold e n H e ath e r, 

(14) Ilex collina -- Alexander 
Long-stalked Holly; 

(15) Isoetes piedmontana -- (Pfeiffer) Reed 
Piedmont Quillwort; 

(16) Liatris helleri -- (Porter) Porter 
Heller's Blazing Star; 

(17) Lilaeopsis carolinensis — Coult. & Rose 
Carolina Lilaeopsis; 

(18) Lilium grayi - Watson 
Gray's Lily; 

(19) Menyanthes trifoliata -- L. 
Buckbean; 

(20) Myriophyllum laxum ~ Schuttlew. ex Chapman 
Loose Watermilfoil; 

(21) Platanthera Integra -- (Nuttall) Gray ex Beck 
Yellow Fringeless Orchid; 

(22) Platanthera nivea -- QJutt.) Luer 
SnowT Orchid; 

(23) Portulaca smallii -- P. Wilson 
Small's Portulaca; 

(24) (25)Rhexia aristosa -- Britton 
Awned Meadow-beauty; 

(3^ Rudb e ckia h e liop s idi s — T. & G. 
Sun facing Concflow e r, 

(25) Ruellia humilis ~ Nutt. 
Low Wild-petunia; 

(26) (34)Sabatia kennedyana - Fern. 
Plymouth Gentian; 

(27) (3^Schisandra glabra - (Brickel) Rehder 
Magnolia-vine; 

(28) (3^Schlotheimia lancifolia - Bartr. 
Highlands Moss; 

(29) (J^Senecio millefolium - T. & G. 
Divided-leaf Rag^vort; 

(30) (^Sporobolus teretifolius - Harper 
Wireleaf Dropseed; 

(31) (J^Thelyptens simulata ~ (Davenp.) Nieuwl. 
Bog Fern; 

(32) (54)Trichomanes boschianum - Sturm ex Bosch 
Appalachian Filmy -fern; 

(33) (54^Trichomanes petersii ~ A. Gray 
Dwarf Filmy-fern; 

(34) (34^Trillium discolor - Wray ex Hook. 
Mottled Trillium; 

(35) (^Utricularia olivacea - Wright ex Grisebach 
Dwarf Bladdenvort. 



908 7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



'tatutory Authority G.S. 106-202. 15. 

TITLE 4 - DEPARTMENT OF ECONOMIC 
AND COMMUNITY DEVELOPMENT 

\otice is hereby given in accordance with G.S. 
50B-21.2 that the Department of Economic and 
'ommunity Development/Division of Community 
ssistance intends to repeal rule(s) cited as 4 
'CAC 19L .1401-.1405. 

The proposed effective date of this action is 
fovember I, 1992. 

nstructions on How to Demand a Public Hearing 
must be requested in writing within 15 days of 
otice): Written requests for a Public Hearing 
ust be received by August 18, 1992. Written 
'quests should be sent to Bob Chandler, Director, 
)ivision of Community Assistance, 1307 Glenwood 
venue, Raleigh, NC 27605. 

yeason for Proposed Action: The proposed action 
necessary due to the transfer of Economic 
)evelopment projects to the Commerce Finance 
enter Division. These Rules are adopted effective 
uly 20, 1992 and codified as 4 NCAC IK. 

comment Procedures: Oral or written comments 
U be accepted until September 2, 1992. Written 
omments should be sent to Bob Chandler, Direct- 
r. Division of C ommunity Assistance, 1307 Glen- 
•ood Avenue, Raleigh, NC 27605. Oral comments 
hould be directed to Gail Brock at (919) 733- 
850. 

ditor's Note: These Rules were filed as tempo- 
ary repeals effective July 20, 1992 for a period of 
80 days or until the permanent rules are effec- 
Ive, whichever is sooner. 

:HAPTER 19 - DIVISION OF COMMUNITY 
ASSISTANCE 

SUBCHAPTER 19L - NORTH CAROLINA 

COMMUNITY DEVELOPMENT 

BLOCK GRANT PROGRAM 

SECTION .1400 - ECONOMIC 
DEVELOPMENT PROJECTS 



.1401 DEFINITION 

The — Economic — Dev e lopm e nt — gmnt — cat e gory' 
includ e s activiti es in which a majorih' of fund s ar e 
dir e ct e d toward promoting th e cr e ation or r e t e ntion 
of jobs principally for p e rsons of low and mod e m 
t e incom e . Proj e cts in this cat e gory must r e sult in 
dir e ct cr e ation or r e t e ntion of jobs within th e gmnt 
program p e riod. All e ligibl e CDBG activiti e s may 



be 



i gram p e noa. ah e iigiDi e LtJtiO activiti e s may 
und e rtalc e n for th e purpo se s of e conomic d e vel 
opm e nt. — All CDBG exp e nditures which dir e ctly 
assist participating privat e e ntiti es must b e return e d 
to grant r e cipi e nts or to th e D e partm e nt a s provid e 
d in Rule .0907 of this Subchapt e r. — The Depart 
m e nt may — allocat e up to — &fte — million dollars 
($1,000,000) of any annual allocation of Economic 
D e v e lopment funds for proj e cts d e sign e d to assist 
small bu s in e ss e s. A s mall busin e ss is dofinod as a 
privat e e ntity which e mploy s 20 or f e w e r full tim e 
or full tim e e quivalent employ ee s; and which 
gen e rat e s no mor e than se v e n hundred and fifty 
thousand dollars ($750,000) in av e rag e annual 
gross sale s in th e lat es t thr ee year p e riod as indi 
catcd by f e d e ral and state tax records. — Any funds 
not utilized for the Small Busin es s Loan Program 
will r e vert to the r e gular Economic D e v e lopm e nt 
grant cat e gory. — Applications for th e Small Busi 
ncss Loan Program — must m ee t th e e ligibility 
r e quir e ments and pr e liminar>' award requir e m e nts 
a s provided in Rules .1102(a) (f) and .1 4 4 . 
S e l e ction criteria for th e Small Business Loan 
Program ar e outlined in Rul e .1105. 

Authority G.S 143-323; 42 U.S.C.A. 5301; 24 
C.F.R. 570.489. 

.1402 ELIGIBILITY REQUIREMENTS 

(a) Applications for Economic Development 

funds must show that at l e ast 60 p e rc e nt of th e 
CDBG — funds propo se d — for each activity — wiil 
benefit low — and moderate incom e p e rson s . — Ap- 
plicant s that do not m ee t thi s r e quir e ment will not 
be rated or fund e d. — In designing proj e ct s which 
m ee t this requirem e nt, applicants mu s t appropriat e 
ly e nsure that activiti e s do not b e n e fit mod e rat e in 
como p e rsons to th e exclu s ion of low incom e 
persons. 

(b) — Applicants s hall have th e capacity to ad 
minister a Community Developm e nt Block Grant 

program. The — D e partm e nt may — e xamin e th e 

following areas to d e t e rmin e capacity: 

(i) audit and monitoring finding s on pr e vi 

ously fund e d Community D e v e lopm e nt 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



909 



PROPOSED RULES 



a^ 



Block Grant program s , and th e ap 
plicant's fiscal accountabilit> as demon 
strated m oth e r stat e and f e d e ral progra 
m s or local gov e rnm e nt financial r e port 
s; and 

- the rate of e xp e nditur e of funds and 
past accomplishm e nt s of oth e r proj e ct 
commitm e nts — m — previously — funded 
Community' D e v e lopm e nt Block Grant 
programs. 
Applicants that show a lack of capacity' will not be 
rat e d or fund e d. 

(ۥ) All Economic Dev e lopm e nt applications 

utilizing oth e r source s of funds in addition to th e 
Community . - D e velopm e nt Block Grant shall in 
elud e firm commitm e nts of th e s e funds from e ach 
funding s ourc e e .xc e pt tho se funds from S e ction 
119 of P.L. 95 128. the Housing and Community' 
Dev e lopm e nt Act of 1977 and shall includ e docu 
m e ntation that thes e funds ar e curr e ntly availabl e 
for th e proposed proj e ct. 

(d) A standardiz e d l e tt e r of commitm e nt mu s t b e 
compl e t e d and s igned by th e participating privat e 
e ntity and s ubmitt e d with th e application. — The 
exact form and languag e of th e l e tt e r will b e 
pr es crib e d by th e D e partment and must b e fol 
low e d by th e applicant. Th e cont e nts of th e l e tter 
will include a commitm e nt by th e privat e e ntit>' to 
cany out the project as d e scrib e d in th e CDBG 
application. 

(€^ — Documentation from th e privat e entit>' that 
th e propo se d proj e ct would not be undertalc e n 
unl e ss th e r e qu e st e d CDBG funds w e r e mad e 
availabl e must b e submitt e d with th e application, 
(f) No application will b e rat e d or fund e d witho 
ut firm commitm e nt s e xc e pt as provid e d in Rul e 
.1 4 02(c) of this Subchapt e r. 

fg) — Each proj e ct must m ee t th e r e quir e m e nt s of 
Rul e .1 4 03(b) to b e eligible for funding. 



Authority G.S. 143-323; 143B-10: 42 U.S.C.A. 
5301: 24 C.F.R. 570.489. 

.1403 SELECTION CRITERIA 

(a) Proj e cts will b e e valuat e d against four s e l e c - 
tion crit e ria as follow s : 



m- 






-The- 



of CDBG funds directlv 



perc e ntage 

ben e fiting low — and moderate income 

p e rsons. 

- The CDBG co s t p e r propos e d job. 
- Th e ratio of th e amount of non CDBG 



inv e stm e nt in the propos e d proj e ct to 
th e amount of CDBG funds in th e prop 
o se d proj e ct, and 
(4) Th e local conditions and impact includ 



(A) — count)' unemploym e nt; 
i&j — project wages; 
(G) — numb e r of project job s ; and 
(&) — prop e rty' tax. 



(b) An applicant must me e t at l e ast on e of thr e 



lev e l s of r e quir e m e nt s to b e e ligible for funding - 



follow s : 



- m ee t the L e vel On e r e quirement s for a 
four crit e ria; 
f2^ m ee t th e L e v e l Two requirements fo 



thr ee of th e four crit e ria; or 
(^^ meet the L e v e l Thr ee r e quir e ments fo 



t^vo of the four criteria. 



(e) — Proj e cts will b e selected for funding froi 
thos e proj e cts which m ee t on e of the rcquircmci 



levels in Paragraph (b) of thi s Rul e based on th 



availability of fund s and overall proj e ct qualip . 



Proj e ct quality will b e d e t e rmined by th e D o pan 
m e nt ba s ed upon th e following factors: 



m th e e xt e nt to which th e proj e ct excocd 

th e requirem e nts in l e v e ls one, two, o 



m- 



thr ee ; 
-the — d e monstrat e d — need — for and ap 



propriaten e ss of funding; 



{^ th e probabilit>- of succ e ss of th e projcc 

as d es crib e d in financial statements an 



oth e r information s ubmitt e d with th 



{^ 



application: and 
-s ignificant local e conomic probl e ms. 



Authority G.S. 143-323; 143B-10; 42 U.S.C.A 
5304(a)(1); 24 C.F.R. 570.489. 



.1404 



PRELIMINARY AWARDS 



The D e partm e nt s hall aimounc e preliminary' grar 
awards aft e r r e vi e w and e\ aluation of Economi 



D e v e lopm e nt applications. A grant agr ee ment sha: 
not b e e xt e nd e d by th e D e partm e nt to a locaUt 



until a l e gally binding commitm e nt with th e pai 
ticipating pnvate e ntity ha s been executed, an ^ 



appro\ed by the D e partment. — Th e l e gally bindin; 
commitm e nt — shaH — incorporat e — project spccifi 



implementation r e quir e m e nts reflecting key proj e c 



e l e m e nts including, as appropriate but not limit ed 
to. dat e s for r e al es tat e closings, orders for equip 



m e nt. start of con s truction, s tart of hiring, an ^ 
pos s ibl e r e paym e nt obligations. Th e legally bind 



ing commitm e nt must b e submitted to and ap 
prov e d by th e D e partm e nt within 90 days of th 



pr e liminaT f - award announc e m e nt. — A prcliminar 
award may b e \>ithdrawn by th e Department if 



l e gally binding commitm e nt is not approv e d by th 



D e partment within th e 90 day p e riod. If a locali t 
r e c e iving a pr e liminar . - award d e mon s trates tha 



910 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



Kicial circumGtanc es vvarmnt, th e D e partm e nt may 
f ant an ext e n s ion of tim e for e x e cuting th e l e gally 
i nding commitm e nt s ubj e ct to acc e ptabl e a s 
{ ranees and a timetabl e from all parti es involv e d. 
\ no case s hall th e tim e for e x e cuting a l e gally 
i nding commitm e nt exceed six month s from the 
rcliminar)' grant award dat e . 



tatutory Authority G.S. J 43-323; 143B-10; 42 
f.S.C.A- 5301. 

405 SELECTION CRITERIA - SMALL 

BUSINESS LOAN PROGRAM 



(a) Project s must m ee t the minimum standards 
i tabhsh e d und e r e ach of th e following criteria: 



(b) Proj e ct s which moot the s tandards es tabli s h e d 
I (a) of this Rul e will be se l e ct e d ba se d upon the 



(19 Th e p e rc e ntag e of CDBG fund s dir e ctly 

ben e fitting low — and modomt e income 
persons, 

(3) Th e CDBG co s t p e r propo s ed job cr e at 

od, and 
- Th e ratio of th e amount of non CDBG 



m- 



inve s tm e nt in th e propo se d proj e ct to 
th e amount of CDBG fund s in th e prop 
o s ed proj e ct. 



)llowing crit e ria: 
(i) Th e e xt e nt to which the proj e ct e xc ee ds 

th e minimum standards outlin e d in Rul e 

.1 4 05(a); 
(2) The demonstrat e d n ee d for and ap 

propriat e n es s of funding; 
(5) Th e probability of s uccess of th e proj e ct 

a s d es cribed in th e financial s tat e m e nt s 

and oth e r information s ubmitt e d with 

the application; and 
(4) Significant local e conomic probl e m s . 

uthority G.S. 143-323; 42 U.S.C.A. 5301; 24 
.F.R. 570.489. 



TITLE 7 - DEPARTMENT OF CULTURAL 
RESOURCES 

otice is hereby given in accordance with G.S. 
50B-21.2 that the USS North Carolina Battleship 
iemorial intends to amend rule cited as 7 NCAC 
.0203. 

he proposed effective date of this action is 
muary 1, 1993. 



A he public hearing will be conducted at 10:00 am 
on Friday, September 4, 1992 at the Admiral's 
Cabin, USS NORTH CAROLINA Battleship Memo- 
rial, Eagle Island, Wilmington, NC. 

Jxeason for Proposed Action: To establish a 
permanent price structure increase for admission 
to the Battleship Memorial. 

\^omment Procedures: Data, opinion and argu- 
ments concerning this rule must be submitted by 
September 4, 1992 to the Director, USS NORTH 
CAROLINA Battleship Memorial, P.O. Box 417, 
Wilmington, NC 28402. 

CHAPTER 5 - U.S.S. NORTH CAROLINA 
BATTLESHIP COMMISSION 

SECTION .0200 - USE REGULATIONS 

.0203 ADMISSION PRICES 

(a) The admission price for the Battleship U.S.S. 
North Carolina is sjx dollars ($6.00) fiv e dollar s 
($5.00) for adults age 12 and over, three dollars 
($3.00) two dollar s and fifty c e nt s ($2.50) for 
children age 6 through 11, one dollar and fifty 
cents ($1.50) on e dollar and tw e nty' fiv e c e nts 
($1.25) per student for organized school groups in 
grades kindergarten through 6, and three dollars 
($3.00) two dollars and fifty c e nts ($2.50) per 
student for organized school groups in grades 7 
through 12. 

(b) There is no charge for children under 6. 

(c) Classroom teachers, aides, and chaperones 
accompanying students in class field trips will be 
admitted without charge at the rate of 1 teacher/ai- 
de/chaperone for each 20 students. 

(d) Tour groups under auspices of bona fide 
travel agents will be offered a 20 percent discount. 
Tour directors and drivers will be admitted without 
charge. 

(e) Any organized groups of 20 or more will be 
offered a 10 percent discount when tickets are 
purchased by a single source. 

Statutory Authority G.S. 143B-73. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

ly otice is hereby given in accordance with G.S. 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



911 



PROPOSED RULES 



150B-21.2 that the Social Services Commis- 
sion Division of Social Services intends to amend 
rule cited as 10 NCAC 35D .0201 and 10 NCAC 
47 B .0305. 

1 he proposed effective date of this action is 
November 1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on September 2. 1992 at the Division of 
Social Services, 9th Floor Conference Room. 
Albemarle Bldg., 325 North Salisbury Street, 
Raleigh. North Carolina 27603. 

Jxeason for Proposed Action: 

10 NCAC 35D .0201 - To reduce unnecessary 
paperwork by allowing counties to use form DSS- 
5094 (Child Placement Information Tracking 
Svstem) in lieu of Service Client Application. 

10 NCAC 47B .0305 - Clarify' in the current APA 
rule that SCD clients are not eligible to receive 
SCD and Medicaid in the same month. 

i^omment Procedures: Comments may be presen- 
ted in writing anytime before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of this 
rule by calling or writing to Donna Creech. Divisi- 
on of Social Services. 325 North Salisbury Street, 
Raleigh. North Carolina 27603, (919) 733-3055. 

CHAPTER 35 - FAMILY SERVICES 

SUBCHAPTER 35D - CONDITIONS FOR 
PROVISION OF SERVICES 

SECTION .0200 - APPLICATION FOR 
SOCLVL SERVICES 

.0201 APPLICATION REQUIREMENT 

All applicants for social senices must initiate 
entr\- into the social sen ices system via a written 
application except that no application shall be 
required for the following: 

(1) protective services for adults; 

(2) protective senices for children; 

(3) foster care senice for children; 
{4} (^ employment program senices. 



Statutory Authority G.S. 143B-153. 

CHAPTER 47 - STATE/COUNTY SPECLfVI 
ASSISTANCE 

SUBCHAPTER 473 - ELIGIBILITY 
DETERMINATION 

SECTION .0300 - COVERAGE 

.0305 CD-SA: CERTAIN DISABLED 

CD-SA coverage shall be provided only f( 
persons who are: 



(1) 

(2) 
(3) 
(4) 

(5) 

(6) 

m 



Persons who hav e appli e d for SSI an 



b ee n found in e ligibl e Ineligible and a 

not receiving SSI; 

In need; 

Not inmates of public institutions; 

Not patients in institutions for ment; 

disease; 

Residing in North Carolina voluntaril 

w ith the intent to remain; asA 

U.S. citizens or aliens lawfiilly admitte 

for permanent residence; and 

Not receiving Medicaid for the sam 

month. 



Statutory .4uthorit\' G.S. 108A-25; 143B-153. 



1\ otice is hereby given in accordance with G.^ 

150B-21.2 that the Social Services Commission 
Division of Social Services intends to adopt rul 
cited as 10 NCAC 42T .0006 and amend rule 
cited as 10 NCAC 35E .0309; 42T .0001, .0003 

1 he proposed effective date of this action i 
December 1. 1992. 

1 he public hearing will be conducted at 10:0( 
a.m. on September 2, 1992 at the DSS 9th Floor 
Conference Room, Albemarle Building, 325 NortI 
Salisbury Street. Raleigh, North Carolina 27603 

iVeason for Proposed Action: The adoption an 
amendment of these rules will simplify' the ad 
ministration of the service at the local level b) 
having compatible rules for a variety of fundini 
sources and administrative auspices, as called fo 
by H.B. lOOS and the Advisory Committee oi 
Home and Community- Care. 



912 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



_,omment Procedures: Comments may be presen- 
ed in writing anytime before or at the public 
tearing or orally at the hearing. Time limits for 
iral remarks may be imposed by the Commission 
''.hairman. Any person may request copies of this 
ule by calling or writing to Donna Creech, Divisi- 
on of Social Services, 325 North Salisbury Street, 
laleigh. North Carolina, (919) 733-3055. 

CHAPTER 35 - FAMILY SERVICES 

SUBCHAPTER 35E - SOCIAL SERVICES 
BLOCK GRANT (TITLE XX) 

SECTION .0300 - SERVICE DEFINITIONS 

03O9 HOUSING AND HOME 

IMPROVEMENT SERVICES 



(a) Priman' Service. Housing and hom e improv e 
lont services mean s assi s tanc e to individuals and 
amilic s in obtaining and r e taining ad e quat e hou s 



ng and basic furni s hings. S e rvic e s includ e h e lping 
improv e landlord tenant relation s , to id e ntifi' 



PROPOSED RULES 



ub s tandard housing. — te — s ecure correction of 
casing code violation s , to obtain or r e tain own e rs 



ip of own hom e , and to find and r e locate to mor e 
uitabl o hou s ing. 



(b) Components. Non e . 



(c) Resourc e it e m s : 

(i) the provision of labor and mat e rial s for 

minor r e novation s and r e pairs to own e r 
occupi e d dw e lling s to r e m e dy condi 
tions which ar e a risk to p e rsonal h e alth 
and saf e ty' may b e included a s an op 
tional part of this se rvic e ; 

(3) ba s ic applianc e s, such as s tove, r e frig e r 

ator, h e ater, fan. or air condition e r may 
al s o b e provid e d at county option to 
facilitat e th e provi s ion of hou s ing and 

heme — improv e m e nt — sor\'ic e s. Such 

applianc es may b e provid e d wh e n this 
is not the r es ponsibility of th e landlord 
and th e individual lacks th e s e e s se ntial s 
to pr e par e food or i s without h e at or 
cooling equipm e nt which is n ee d e d to 
prot e ct th e ir h e alth. 

(d) — Targ e t Population. — Individuals or famili es 



ee ding to obtain or r e tain ad e quate housing or 
asic furnishings. Within th e targ e t population. 



ligiblc cli e nt s shall b e provid e d hou s ing and hom e 



nprovement s ervic es in th e following ord e r of 
riorit)^ 

(i^ ag e d or di s abl e d adults and childr e n 

who need th e se rvic e to avoid imp e nd 



m 



(2} 



ing placement in substitut e car e ( e .g. 
nursing homo, domiciliary homo, fo s ter 
home), and abus e d or n e gl e cted adults 
and childr e n who n ee d th e se rvic e a s 
part of a protective servic e s plan; 

(3) ag e d or disabl e d adults who need the 

s e rvic e to saf e guard th e ir functioning 
and to maintain p e rsonal h e alth and 
saf e t>' in their own hom es ; 

(5) childr e n who need th e s e rvic e as part of 

a plan of pr e v e ntiv e s e rvic e s d es ign e d 
to s tr e ngth e n th e family and preserve 
th e hom e for th e child, or as a part of 
p e rman e ncy planning to e nable a child 
to r e turn hom e from substitut e car e . 

(a) Primary Service. Housing and home im- 
provement services means assistance to individuals 
and families in obtaining or retaining adequate 
housing and basic furnishings or appliances, or 
both. The service has three distinct elements: 

Provision of counseling, advocacy and 
training to individuals or to groups; 
Provision of labor and materials for 
minor renovations and repairs to dwell- 
ings to remedy conditions which are a 
risk to the personal health and safety of 
individuals or families or to enhance 
mobility for functionally impaired in- 
dividuals; and 

Provision of basic furnishings or ap- 
pliances, or both, to remedy deficiencies 
which pose a risk to the basic health 
and safety of individuals and families. 

(b) Components. None. 

(c) Resource Items. None. 

(d) Target Population. Individuals or families 
needing one or more elements of the service, such 
as counseling, advocacy, training, renovations or 
repairs to dwellings, or basic furnishings or ap- 
pliances, to obtain or retain adequate housing that 
enables them to remain in. or return to. their own 
homes and alleviates risk to their personal health 
and safety. Persons acting on behalf of an eligible 
client may be allowed to access the service. 
Within the target population eligible clients must 
be served in the following order of priority: 

(1) adults and children for whom the need 
for protective services has been substan- 
tiated and the service is needed as part 
of a protective services plan; 
adults who are at risk of abuse, neglect 
or exploitation and children who are at 
risk of abuse, neglect, or dependency; 
adults with extensive ADL or lADL 



(3} 



(2} 



(3) 



impairment who are at risk of place- 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



913 



PROPOSED RULES 



ment in substitute care and children 
who are at risk of placement in sub- 
stitute care; 

(4) children who need the sen ice as part of 
a plan of preventive sen' ices designed 
to strengthen the family and preserve 
the home for the child, or as part of 
permanency planning to enable a child 
to return home from substitute care; and 
adults with three or more ADL or lADL 
impairments; 

(5) adults with one or two ADL or I ADL 
impairments. 

Statuton' Auihonh' G.S. 143B-153. 



CHAPTER 42 



INDIVIDUAL AND FAMILY 
SUPPORT 



SUBCHAPTER 42T - HOUSING AND HOME 
IMPROVEMENT SERVICES 

.0001 DEFINITIONS 

(a) Th e d e finition of housing and hom e improv e 
m e nt se Aice s i s s e t forth in 10 NCAC 35E .0309. 

{b) "Obtaining" — under this s e rvic e includ e s 

location of and n e gotiation for ad e quat e housing or 
ba s ic furnishing s and arranging for relocation to 
oth e r hou s ing or for th e mov e m e nt of basic fur 
ni s hing s . 

{€) "R e taining" — und e r this s e rvic e includ es 

n e gotiation with individual s who have influ e nc e 
ov e r or control of th e cli e nt' s abilit>' to continu e 
k ee ping hi s abod e or his basic furnishings. 

(4) — "Ad e quat e Hou s ing" m e ans a dw e lling that 
is lawfully and r e asonably sufficient to m ee t th e 
n ee ds of th e cli e nt and his family. 

( e ) "Basic Furni s hing s " includes es s e ntial hou se 
hold it e ms. 

(f) "Own e r Occupi e d Dw e lling" m e ans an abod e 
in which th e se rvic e r e cipi e nt r e sid e s and ov e r 

which th e s e rvic e r e cipi e nt r e tains titl e . This 

includ e s an abod e ov e r which th e individual has 
titl e through th e provision of a lif e e stat e . 

(g) "Ba s ic Applianc e s" includ e s it e ms n e c e ssan . - 
for r e fng e rating or pr e paring food, or h e ating or 
co oling th e hom e . 

fh^ — "Minor R e novations and R e pairs" includ es 
r e storation of th e dw e lling so as to l e ss e n risks to 
p e rsonal h e alth and s afety without including any 
st ruct u ral chang e to th e dw e lling. 

(a) "Activities of Daily Living (ADL)" include 
eating; dressing; bathing; toileting; bowel and 
bladder control; transfers; ambulation; and com- 
munication such as speaking, writing, signing. 



gestures, and using communication devices. 

(b) "Adequate housing" means a dwelling that 
lawfully and reasonably sufficient to meet th 
needs of the individual or family. 

(c) "Advocacy" means efforts on behalf 
individuals or families who require assistance wit 
accessing or obtaining community- services an 
su pports. 

(d) "Area of Repair" means the room or sectin 
of the home needing modification, such as the roc 
or bathroom. 

(e) "Basic appliances" means items that ai 
necessary for refrigerating or preparing food, 
heating or cooling the home. 

(f) "Basic furnishings" means essential househ 
Id items. 

(g) "Instrumental Activities of Daily Livin 
(lADL)" include meal preparation, medicatio 



intake, cleaning, money management, phone us< 

laundering, reading, writing, shopping and going 

necessary activities. 

(h) "Minor renovations and repairs" mean 



restoration of the dwelling so as to lessen risks t 

personal health and safets without including an 

structural change to the dwelling. 

(i) "Obtaining" means location of and negotia' 



ing for adequate housing or basic furnishings an 
arranging for relocation to other housing or for th 
movement of basic furnishings. 

(]} "Own home" means that the individual c 
family is living in a residence maintained bj; hii 
or them, or is maintained for him or them by 
caretaker. "Own home" does not include an 
group care. 

(k) "Retaining" under this service means negoti 



ting with individuals who have influence over c 
control of the individual's ability to continu 
keeping his abode or his basic furnishings. 



Statuton' Authorin' G.S. 143B-153. 



.0003 METHODS OF SERVICE PROVISIOl 



(a) Dir e ct Provision and Cash Payment Method ; 
(4-) Any of th e e l e m e nts of hou s ing an 



hom e improv e m e nt s e rvice s may b 



provid e d dir e ctly by staff of the count 
d e partm e nts of s ocial se rvic e s. 



(3) Basic applianc e s and labor and mat e r 

als for minor r e novations or r e pairs t 



own e r occupi e d dw e lling s may b e pro\ 
id o d by direct paym e nt from th e count 



d e partm e nt of social se rvices to th 
se rvic es to th e s e rvic e provid e r or b 
cash 



paym e nt from th e departm e nt € 
social s e rvic e s to th e s e r\'icc r c cipi e n 



914 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



Whore th o ca s h paym e nt m e thod is u se d 
for providing thes e r e sourc e it e m s th e 
following procedures apply: 
(A) — The county department of social s e rvi 
ces mu s t determin e that th e se rvic e 
r e cipi e nt i s capabl e of arranging for 
and obtaining quality servic e for hims 
etfr 
(B^ — The county dir e ctor or his d es ign ee 
must authorize th e purchas e of a basic 
appliance or minor r e novation s and 
r e pairs, at an approved cost, prior to 
the provi s ion of th e s e rvic e and docu - 
ment thi s in th e s ervic e r e cord. 
(G) — A r e c e ipt s howing th e d e scription of 
th e se r\'ic e provid e d, th e dat e the 
s ervic e was provided, th e nam e and 
addr ess of th e se rvic e provid e r, th e 
amount paid for th e s e rvic e , th e dat e 
of paym e nt from th e r e cipi e nt to th e 
provid e r of th e s e rvic e and th e s igna 
tur e of th e provider or th e individual 
receiving paym e nt in hi s b e half m -ust 
b e giv e n to th e county- d e partm e nt 
prior to a request for f e d e ral financial 
participation in r e imburs e m e nt. 

(3^ Th e cost s of labor or mat e rial or both 

n ee d e d for r e novations and r e pairs to 
th e hom e s of e ligibl e individuals ar e 
allowabl e — under — the — following — evr- 
cumstanc es : 
(A) — Th e r e novations or r e pairs do not 
includ e — any — structural — chang e — and 
costs ar e limit e d to a maximum of 
fiv e hundr e d dollars ($500.00) for 
labor or mat e rial s or both p e r ar e a of 
r e pair, e .g.. roof, bathroom; and 
(B) — Th e costs ar e r e asonabl e and n e c e ssa 
ry whil e providing quality' work; and 
(€) — Th e condition of th e hom e is s uch that 
minor renovations or r e pairs can malco 
th e dw e lling safe and h e althy for th e 
occupants; and 
(©) — Th e dwelling is own e r occupi e d. 

W Th e co s t of new or us e d ba s ic ap 

pliance s is allowabl e provid e d that th e 
condition of the applianc e s m ee t s th e 
n ee ds of th e individual or family, 
(b) Purchas e of Servic e Contract. Th e e l e m e nts 



f obtaining and r e taining ad e quat e housing and 
isic furnishing s a s w e ll as th e provi s ion of labor 



id material s for minor r e novations and r e pairs to 



wner occupied dw e llings may b e purchas e d und e r 
>ntroct. — Ba s ic applianc e s cannot b e provid e d as 
irt of a contmct for housing and hom e improv e 



m e nt s e rvic es . 

Housing and Home Im provement Services may 
be provided directly hy_ the county department of 
social services or may be purchased. 

Statutory Authority G.S. 143B-153. 

.0006 SERVICE DELIVERY 

(a) Renovadons and repairs to renter occupied 
dwellings may be provided only when this is not 
the responsibility of the landlord. 

(b) Basic furnishings or appliances, or both, may 
be provided to residents of renter occupied dwell- 
ings only when such items are not the respon- 
sibility of the landlord. 

(c) Reimbursement is available for the cost of 
salary, fringe benefits and other administrative 
costs associated with the provision of Housing and 
Home Improvement Services. 

(d) Reimbursement is available for the costs of 
labor or materials, or both, needed for renovations 
and repairs to the homes of eligible individuals 
under the following circumstances: 

(1) the renovations or repairs are minor and 
do not include any structural change; 
reimbursements are limited to a maxi- 
mum of eight hundred dollars ($800.00) 
for labor and materials per area of repa- 
ii; and 

(2) the costs are reasonable and necessary; 
and 

(3) the condition of the home is such that 
minor renovations or repairs will make 
the dwelling safe and healthy for the 
occupants. 

(e) Reimbursement is available for the purchase 
of new or used basic furnishings or appliances as 
long as they are in such condition that they meet 
the needs of the individual. 

Statutory Authority G.S. N3B-153. 
******************* 

ly otice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Facility Services 
(Social Services Commission) intends to amend 
rule cited as 10 NCAC 42C .3402. 

1 he proposed effective date of this action is 
November 1, 1992. 

1 he public hearing will be conducted at 10:00 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



915 



PROPOSED RULES 



a.m. on September 9, 1992 at the Albemarle 
Building, 325 North Salisbury Street, Raleigh, 
North Carolina. 

JKeason for Proposed Action: Rule change is 
recommendation of the Domiciliary Home Licen- 
sure Program Rules Review Committee to make the 
time frame for submitting the Annual Recommenda- 
tion for Renewal of License (DSS-1871) consistent 
with the 45 day requirement set forth in the Domi- 
ciliary Home Procedures Manual. 

Comment Procedures: Comments may be present- 
ed in writing any time before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of this 
rule by calling or writing to Donna Creech, Divi- 
sion of Social Services, 325 North Salisbury Street, 
Raleigh, North Carolina 27611. Telephone (919) 
733-3055. 

CHAPTER 42 - INDIVIDUAL AND FAMILY 
SUPPORT 

SUBCHAPTER 42C - LICENSING OF 
FAMILY CARE HOMES 

SECTION .3400 - LICENSING 
INFORMATION 

.3402 RENEWAL OF LICENSE 

(a) The license w ill be renewed annually on evi- 
dence that: 

(1) The rules of this Subchapter are being 
maintained. When violations of these 
Rules are documented and have not 
been corrected prior to expiration of 
license, the Division of Facilit}' Services 
may approve a continuation or exten- 
sion of a plan of correction, or may 
issue a provisional license or revoke the 
license for cause. 

(2) The following reports have been sub- 
mitted to the county department of 
social services with 12-month period 
which will forward them to the Division 
of Facihty Services: 

(A) Documentation of necessar\' tests for 
tuberculosis; 

(B) Record of contmuing education cred- 
its for each administrator and supervi- 
sor-in-charge; 

(C) DSS-6191 or DSS-1451 (Fire and 



Building Safety Inspection Report); 

(D) DHS-2094 (Sanitation Report); and 

(E) DSS-1871 (Armual Recommendatic 
for Renewal of License). 

This form is to be submitted by the coun 
department of social services at least 3^ 
days in advance of the expiration date 
the license, with a copy to the administi 
tor. 

(b) If the Division of Facility Services has n 
received the DSS-1871 and the other requin 
licensing materials listed in Subparagraph (a)(2) 
this Rule by the expiration date, the license w 
expire. 

Statutory Authority G.S. 131D-2; 143B-153. 

lyotice is hereby given in accordance with G. 
15 08-21. 2 that the Social Services Commissio 
Division of Facility Services intends to amei 
rule(s) cited as 10 NCAC 46C .0107; 46H .030 
repeal rule(s) cited as 46C .0105; and ado, 
rule(s) cited as 46H .0110. 

1 he proposed effective date of this action 
December 1, 1992. 

J. he public hearing will be conducted at 10:i 
a.m. on September 2, 1992 at the Albemarle Bld^ 
DSS 9th Floor Conference Rm., 325 N. Salisbu. 
St., Raleigh, NC 27603. 

Jxeason for Proposed Actions: 

10 NCAC 46C .0105, .0107 and 10 NCAC 46 
.0110 - To comply with federal regulations, reque 
ted by MHDDSAS, and Child Day Care Committi 
of the NC Social Services Directors' Association 
provide consistency among state programs. 

10 NCAC 46H .0304 - To eliminate confusic 
about which child is charged the full fee. 

\^omment Procedures: Comments may be prese 
ted in writing any lime before or at the publ 
hearing or orally at the hearing. Time limits ft 
oral remarks may be imposed by the Commissi) 
Chairman. Any person may request copies of the. 
Rules by calling or writing to Donna Creec 
Division of Social Services, 325 N. Salisbu 
Street, Raleigh, NC 27611, (919) 733-3055. 



916 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



CHAPTER 46 - DAY CARE RULES 

SUBCHAPTER 46C - PURCHASE OF 
CHILD DAY CARE 

;ECTI0N .0100 - BASIC REQUIREMENTS 

[)105 SPECIAL NEEDS SUPPLEMEN- 
TAL RATE 

^) Any approved provid e r of daily car e may b e 
t giblc for a G uppl e mcntal rat e e qual to 10 p e rc e nt 
the provider' s payment rat e und e r th e following 



nditions: 

(i) the se rvice population of the child day 

care c e nt e r or hom e i s compris e d of at 
l e a s t 60 p e rcent childr e n without sp e cial 
need s and the cent e r or hom e provid es 
se rvic es to a child or childr e n with 
s p e cial n ee d s ; 

(2) the provider's rat e for a child s hall not 

exc ee d — 10 p e rc e nt of the provid e r's 
approv e d daily car e rat e for that ag e 
group; 

(5) th e ag e ncy det e rmining e ligibility for 

the s e rvic e ha s on fil e a sign e d l e tt e r, 
s tat e m e nt or summary from th e p e rson 
authoriz e d to mak e the diagno s is to 
docum e nt th e "sp e cial n ee d" condition 
and a s ummary of th e sp e cial se rvic e s 
required to m ee t th e child's needs. 



(b) A "sp e cial n ee ds" child i s one who is d e t e r 

in e d by th e appropriat e authoriti es , a s id e ntifi e d 

16 NCAC 6H and 10 NCAC 37F and Sub 



ungraph ( 4 ) of this Rul e , to qualify und e r on e or 
or e of th e crit e ria li s t e d in thi s Pamgmph: 



(i) child r e cipient of SSI (Suppl e m e ntal 

S e curity Incom e ); 

(3) s p e cial n ee ds child a s defin e d in accor 

danc e with D e partm e nt of Public In 
s truction' s rul es in 16 NCAC 6H .0001; 

(3^ a mentally r e tard e d or s e v e r e ly phy s i - 
cally disabled child under criteria found 
in 10 NCAC 37F .000 4 ; 

(4) a "high risk" infant d e fin e d a s a child 

from birth to 3 y e ars of ag e who e x 
hibit s significantly atypical patt e rn s of 
b e havior that indicat e a high probability 
of mental r e tardation. Th e condition of 
high risk must b e d e t e rmin e d by a phy s 
ician, who may s e cur e corroborating 
e vidence from a practicing p s ychologi s t 
or a p s ychological a ss ociat e und e r the 
s up e rvision of a practicing p s ychologi s t. 

atutoty Authority G.S. 143B-153(2a). 



.0107 RATES FOR SUBSIDIZED CARE 

(a) The payment rate for centers in which fewer 
than 50 percent of the children enrolled are sub- 
sidized with state or federal funds shall be the 
same fee paid by private paying parents for a child 
in the same age group in the same center, including 
registration fees. The payment rate for daily 
transportation provided by these centers is the same 
fee paid by a private paying parent for transporta- 
tion of a child to or from the center. 

(b) Centers in which 50 percent or more of the 
children enrolled are subsidized with state or 
federal fiinds may choose annually one of the 
following options; 

(1) the center's payment rates for care and 
transportation for state fiscal year 1985 
-86; or 

(2) the county market rate for care calcu- 
lated pursuant to the aimual appropria- 
tions act and the state payment rate for 
transportation. 

(c) C e nt e rs Facilities, as defined in G.S. 110- 
86(3). which primarily serve children who are 
m e ntally — er physically — handicapp e d. — c e r e bral 
pal s i e d, autistic, or abu se d or n e glect e d pur s uant to 
G.S. 7A 5 44 , meet the definition of special needs 
set forth in 10 NCAC 46H .0110 are exempt from 
the provisions of Paragraphs (a) and (b) of this 
Rule and may choose aimually one of the follow- 
ing payment options: 

(1) the maximum rates established by the 
Division of Mental Health/Developmen- 
tal Disabilities/Substance Abuse Serv- 
ices for developmental day centers; or 

(2) the center's allowable unit cost per child 
established annually by the section 
according to the Division of Mental 
Health/Developmental Disabilities/Sub- 
stance Abuse Services allowable cost 
policy, and the rate establishment proce- 
dures approved by the secretary pur- 
suant to G.S. 143B-153(2 a). 

(d) Any approved day care provider who provid- 
es care to children who meet the definition of 
special needs set forth in 10 NCAC 46H .01 10. but 
who does not primarily serve special needs childre- 
n> may be paid a supplemental rate u^ to 75% 
above the provider's approved daily care rate for a 
particular age group and shall be subject to the 
following conditions: 

(1) the maximum payment rate shall not 
exceed the maximum rate established 
for developmental day centers by the 
Division of Mental Health/Developmen- 
tal Disabilities/Substance Abuse Servic- 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



917 



PROPOSED RULES 



es; and 

(2) the senice population of the child dav 

care facilm or home is compnsed of at 

least 60% children without special 

needs and the facility or home provides 

services to a child or children with 

special needs. The 60% rule does not 

apply to home-based arrangements 

where the number of children e moiled 

exempts them from state regulation. 

£e}{d) Except as provided for in Paragraph (a), 

the payment rate for registration fees shall be 

limited to twent\- dollars ($20.00) per year per 

child. 

(Hfe) Purchasing agencies may negotiate with 
day care center providers for purchase of child day 
care services at payment rates lower than those 
prescribed by this Rule. 

(g) Child day care senices funds shall not be 
used to gay for services provided by the Depart- 
ment of Human Resources. Division of Mental 
Health/Developmental Disabilities/Substance Abuse 
Services or the Department of Public Instruction. 
Division of Exceptional Children's Senices. 

Statutory Authority G.S. 143B-153(8)a. 

SUBCHAPTER 46H - POLICIES FOR 

PROVISION OF CHILD DAY CARE 

SERVICES 

SECTION .0100 - GENERAL POLICIES 

.0110 SCOPE 

(a) A special needs child is one who is determin- 
ed bv the appropnate authorities to qualify under 
one or more than one of the criteria listed in this 
Paragraph: 

(1) a child who is determined by the area 
mental health/developmental dis- 
abilities/substance abuse program to 
meet the definition of special needs 
pursuant to G.S. 122C and codified in 
iO NCAC 14K .0103(c) (11). (24). and 
(40); including subsequent amendments; 
or 

(2) a child who is determined by the local 
educational agencv (LEA) to meet the 
definition of special needs as defined in 
the Department of Public Instruction's 
"Procedures Governing Programs and 
Ser\ices for Children With Special 
Needs", codified in .1501A (2)-(13). 

(b) The agencv determining eligibilit\- for the 
services has on file a signed letter, statement, or 



summary from the person authorized to make tl 
diagnosis to document the "special need" conditio 
and a summary of the special services required 
meet the child's needs as outlined in the child 
individualized plan. An individualized plan 
required to be developed by the area mental heal' 
program or the local educational agency for evei 
child who is determined to meet the definition 
a special needs child pursuant to PL 99-457. G 
122C-3 and G.S. 115C-146.1. 
(c) Eligibility for the supplemental rate shall \ 



contingent upon the provider's compliance with tl 



acti\ities designated for the provider in the child 
individualized plan. 

Statutory Authority G.S. 1 43B-153(2a). 

SECTION .0300 - CLIENT FEES FOR 
CHILD DAY CARE SERVICES 

.0304 ADJUSTMENTS IN FEES 

(a) When child day care senices are provided i 
more than one member of the same family, tl 
parent shall be charged the full fee for the fe 
youngest child e moiled full time . The fee charge 
for each additional child shall be fifty percent ( 
the fee for the first child. 

(b) If family medical expenses exceed U 
percent of the family's gross income in any eligibi 
it}' period, the amount of the expenses whic 
exceed the gross income shall be deducted fro 
the gross income. The reduced income shall t 
used to determine the amount of the fees to 1: 
assessed the family for child day care senices 

(c) When the approved care plan is for less tha 
full-day care, the assessed fee for the sendee 
adjusted by the appropriate percentage relative i 
the appro\ed care plan. 

Statuton' Authoritx' G.S. 143B-153. 



TITLE 12 - DEPARTMENT OF JUSTICE 

l\ otice is hereby given in accordance with G.. 
150B-21.2 that the X.C. Private Protective Servic 
Board intends to adopt rule cited as 12 NCAC 7 
.0906. 

1 he proposed effective date of this action 
November 2, 1992. 

1 he public hearing will be conducted at 12:i 



918 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



m. on August 18, 1992 at the State Bureau of 
westigation, Conference Room, 3320 Old Garner 
oad, Raleigh, NC 27626-0500. 

\_eason for Proposed Action: Requires a certified 
rearms trainer to maintain an armed certification 
le for each trainee. 



omment Procedures: Interested persons may 
resent their views either orally or in writing at 
le hearing. In addition, the record of hearing will 
e open for receipt of written comments until 
eptember 2, 1992. Written comments must be 
elivered to or mailed to: James F. Kirk, Private 
rotective Services Board, 3320 Old Garner Rd., 
.0. Box 29500, Raleigh, N.C. 27626. 

CHAPTER 7 - PRIVATE PROTECTIVE 
SERVICES 

SUBCHAPTER 7D - PRIVATE 
PROTECTIVE SERVICES BOARD 

SECTION .0900 - FIREARMS TRAINER 
CERTIFICATE 

i906 RECORDS RETENTION 

A Certified Firearms Trainer shall retain the 
illowing in the individual's armed certification 



le: 
01 



(3) 



a copy of the summary sheet listing the 
name(s) of individual(s) qualifying for 
armed security guard registration, and 
hour(s) of training, weapon qualification 
scores and any other information thereon: 
and 

a copy of the individual's Firearm Train- 
ing Certificate: and 
the individual's B-27 target: or 
the Certified Firearms Trainer's Documen- 
tation Record. 



tatutory Authority G.S. 74D-5. 

******************* 

\otice is hereby given in accordance with G.S. 
50B-21.2 that the N.C. Alarm Systems Licensing 
oard intends to amend rule(s) cited as 12 NCAC 
1 .0301. 



1 he proposed effective date of this action is 
November 2, 1992. 

1 he public hearing will be conducted at 11:00 
a.m. on August 18, 1992 at the State Bureau of 
Investigation, Conference Room, 3320 Old Garner 
Road, Raleigh, NC 27626-0500. 

JVeason for Proposed Action: To require an 
employer to submit a Certification of the Back- 
ground and Criminal Record Check for each 
applicant and to maintain a copy of the Certifica- 
tion in each employee 's file. 

K^omment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing will 
be open for receipt of written comments until 
September 2, 1992. Written comments must be 
delivered to or mailed to: James F. Kirk, NC 
Alarm Systems Licensing Board, 3320 Old Garner 
Rd, P.O. Box 29500, Raleigh, NC 27626-0500. 

CHAPTER 11 - N.C. ALARM SYSTEMS 
LICENSING BOARD 

SECTION .0300 - PROVISIONS FOR 
REGISTRANTS 

.0301 APPLICATION FOR REGISTRATION 

(a) Each employer or his designee shall submit 
and sign an application form for the registration of 
his employee on a form provided by the Board. 
This form, when sent to the board, shall be accom- 
panied by a set of classifiable fingerprints on a 
standard F.B.I, applicant card, two recent photogra- 
phs of acceptable quality for identification one inch 
by one inch in size, statements of the results of a 
local criminal history records search by the city-co- 
unty identification bureau or clerk of superior court 
in each county where the applicant has resided 
within the immediate preceding 48 months and the 
registration fee required by 12 NCAC Chapter 11 
.0302. 

(b) The employer of an applicant who is current- 
ly registered with another alarm business, shall 
complete an application form provided by the 
Board. This form shall be accompanied by the 
applicant's multiple registration fee. 

(c) The employer of each applicant for registra- 
tion shall retain a copy of the applicant's applica- 
tion in the individual applicant's personnel file in 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



919 



PROPOSED RULES 



the employer's office. 

(d) The employer of each applicant for registra- 
tion shall complete and submit to the Board a 
certification of the background and criminal record 
check of even' applicant signed by the licensee 
and/or qualifying agent. A copy of this certifica- 
tion shall be retained in the indnidual apphcant's 
persoimel file in the employer's office. 

Statutory Authority G.S. 74D-5; 74D-8. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

l\ otice is hereby given in accordance with G.S. 
150B-21.2 that the DEHNR - Sedimentation Con- 
trol Commission intends to amend rule(s) cited as 
15A NCAC 4D .0003. 

1 he proposed effective date of this action is 
December 1, 1992. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Any person(s) requesting that the Com- 
mission hold a public hearing on the proposed rule 
must submit such a request in writing within 15 
days after publication of the notice. The request 
must be submitted to: Mr. Craig Deal, DEHS'R, 
Land Quality Section. P.O. Box 27687, Raleigh, 
NC 27611. Written requests for hearing must be 
received no later than 5:00 p.m. on August 18, 
1992. 

Keason for Proposed Action: To delete Sub- 
paragraphs (a) and (c) which are provisions for 
revising local ordinances. These provisions are 
inconsistent with current policy of the Sedimenta- 
tiori Control Commission. 

K^omment Procedures: Interested persons may 
contact Mr. Craig Deal at (919) 733-4574 for 
more information regarding this Rule. Written 
comments will be received for 30 days after public- 
ation of the notice. Written comments must be 
submitted to Mr. Craig Deal, DEHNR, Land 
Quality Section, P.O. Box 27687, Raleigh, NC 
27611. Written comments must be received no 
later than 5:00 p.m. on September 2, 1992. 

CHAPTER 4 - SEDIMENTATION 



CONTROL 

SUBCHAPTER 4D - LOCAL ORDINANCE! 

.0003 REVISIONS TO APPROVED LOCA 
ORDINANCES 

fa) — Th e Commission shall revi se the mod 



ordinance as n e c e ssary and shall provide g u ^ 
r e vi s ion s to all appro\' e d local program s within ; 
days of th e dat e of r e vision. — Each local govcr 



m e nt shall incorpomt e said r e visions in its loc 



ordinanc e within e ight months following the 
r e c e ipt. If local ordinance s tandards and provi 



sie 



m ee t or exceed th e r e quir e d r e visions th e loc 



gov e rnm e nt s hall notify' th e Commi ss ion within ^ 



days of th e ir r e ceipt. 

fb) The Commission shall only approve revisioi 
upon determining that such revisions equal 
exceed the standards of the model ordinance ai 
have been adopted locally. 

(c) Th e Commi ss ion s hall review draft revi s ioi 



und e rtalc e n by a local gov e rnment within 60 da' 



of th e ir r e c e ipt and shall notifS' the local govcn 
m e nt of their ad e quacy or of any nece s sary' conc( 



tions. 



Statutory: Authority G.S. ]]3A-54{d); 113A-60. 



TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 



******************* 

1^ otice is hereby given in accordance with G.t 
150B-2L2 that the Department of Environmen 
Health, and Natural Resources - Governor's Wasi 
Management Board intends to amend rule(s) cite 
as 15A NCAC 14A .0502, .0512. 

1 he proposed effective date of this action i 
November 2, 1992. 

1 he public hearing will be conducted at 3:00 p. n 
on August 20, 1992 at the Dobbs Building, Root 
2115, 430 N. Salisbury Street. Raleigh, Nort 
Carolina. 

Ixeason for Proposed Action: To make mino 
technical corrections to the Governor's Wasi 



920 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



lanagement Board's existing rules of procedure 
r implementing the limited preemption process. 

omment Procedures: Interested persons may 
mtact Dr. Linda W. Little at (919) 733-9020 for 
ore information regarding these Rules. Written 
mments will be received for 30 days after public- 
ion of this notice. The request must be submitted 
: Dr. Linda W. Little, GWMB, P.O. Box 27687, 
aleigh, NC 27611-7687. Mailed written com- 
ents must be received no later than 12:00 p.m. 
'ptember 2, 1992. 

CHAPTER 14 - GOVERNOR'S WASTE 
MANAGEMENT BOARD 

SUBCHAPTER 14A - RULES OF 

PROCEDURE FOR IMPLEMENTING THE 

LIMITED PREEMPTION PROCESS 

ECTION .0500 - PREEMPTION PROCESS: 
HAZARDOUS WASTE FACILITY 

502 DEFINITIONS 

As used in these Rules: 

(1) "Board" means the Governor's Waste 
Management Board estabhshed pursuant 
to Part 27 of Article 3 of Chapter 143B 
of the General Statutes. 

(2) "Chairman" means the Chairman of the 
Board. 

(3) "City" means a municipal corporation 
defined by G.S. 160 A-1. 

(4) "Commission" means the North Carolina 
Hazardous Waste Management Commis- 
sion established pursuant to Chapter 130B 
of the General Statutes. 

(5) "County" means any one of the counties 
listed in G.S. 153A-10. 

(6) "Days" means calendar days. 

(7) "Facility" means a hazardous waste facili- 
ty authoriz e d by th e Governor a s provid e 
d in G.S. 130B 5(a) and G.S. 130B 5(b) 
(1), e ith e r propos e d, und e r con s truction, 
or operational, defined by G.S. 130A- 
290(9). 

(8) "File" or "Filing" means to place the 
paper or item to be filed into the care and 
custody of the Executive Director of the 
Board and acceptance thereof by him. 
All documents filed with the Board, 
except exhibits, shall be in letter size 8 
1/2" by 11". 

(9) "Non-party" means any person who is not 



a party. 

(10) "Operator" means a private operator or 
the Hazardous Waste Management Com- 
mission or a person employed by the 
Hazardous Waste Management Commis- 
sion pursuant to G.S. 130B-7. 

(11) "Ordinance" means a local ordinance, 
resolution or other action by a county, 
city, town or other unit or agency of local 
government including health, environmen- 
tal or land use regulations, taxes, fees or 
charges. 

(12) "Party" means the person who submits a 
petition, or the city or county that adopte- 
d the ordinance that is the subject of the 
petition. 

(13) "Person" means an individual; corpora- 
tion; company; association; partnership; 
unit of government, agency, authority or 
commission at the local, state or federal 
level; or other legal entity. 

(14) "Service" or "Serve" means personal 
delivery or, unless otherwise provided by 
law or rule, delivery by first class United 
States Postal Service mail or a licensed 
overnight express mail service, postage 
prepaid and addressed to the party at his 
or her last known address. Service on the 
Board means personal delivery by first 
class United States Postage Service mail 
or a licensed overnight express mail 
service, postage prepaid and addressed to 
the Executive Director, Governor's Waste 
Management Board, P.O. Box 27687, 
Raleigh, N.C. 27611-7687. A Certificate 
of Service by the person making the 
service shall be appended to every docu- 
ment requiring service under these rules. 
Service by mail or with licensed over- 
night express mail is complete upon 
placing the item to be served, enclosed in 
a wrapper addressed to the person to be 
served, with sufficient postage affixed, in 
an official depository of the United States 
Postal Service or upon delivery, postage 
prepaid and wrapped in a wrapper ad- 
dressed to the person to be served, to an 
agent of the overnight express mail servi- 
ce. 

Statutory Authority G.S. 130A-293: 143B-216.13 
(14). 

.0512 APPEAL OF BOARD'S DECISION 

The decision of the Board may be appealed in 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



921 



PROPOSED RULES 



accordance with G.S. 130A-293{e) (el. 

Statutory Authority G.S. 130A-293; 143B-216.13 
(14). 

************** 

iS otice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Wildlife Resources Com- 
mission intends to amend rule(s) cited as 15A 
NCAC I OF .0323, with changes from the proposed 
text noticed in the Register. Volume 7, Issue 6, 
pages 556. 

1 he proposed effective date of this action is 
December I, 1992. 

%^omment Procedures: Interested persons may 
present their views in writing from August 3, 1992 
to September 2, 1992. Such written comments 
must be delivered or mailed to the N.C. Wildlife 
Resources Commission, 512 N. Salisbury Street, 
Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0323 BURKE COUNTY 

(a) Regulated Areas. This Rule applies only to 
the following lakes or portions of lakes which lie 
within the boundaries of Burke Count} : 

(1) Lake Hickor,-; 

(2) Lake James; 

(3) Lake Rhodhiss. 

(b) Speed Limit N e ar Ramps . No person shall 
operate a vessel at greater than no-wake speed 
within 50 yards of any marked public boat launch- 
ing ramp^ bridge, marina, boat storage structure, 
boat service area, dock or pier while on the regu- 
lated areas descnbed in Paragraph (a) of this Rule 
or within 50 yards of any designated private boat 
launching ramp^ bridge, marina, boat storage 
structure, boat service area, dock or pier around the 
Holiday Shores Subdivision on Lake James or 
within 50 yards of the Lake James Campground. 

(c) Speed Limit in Mooring Areas. No person 
shall operate a vessel at greater than no-wake 



speed while within a marked mooring area establi 
hed with the approval of the Executive Director, 
his representative, on the regulated areas describ 
in Paragraph (a) of this Rule. 

(d) Restricted Swimming Areas. No perse 
operating or responsible for the operation of 
vessel shall permit it to enter any marked publ 
swimming area established with the approval of tl 
Executive Director, or his representative, on tl 
regulated areas described in Paragraph (a) of th 
Rule, including th e ar e a within 50 yard s ef-ai 
d es ignat e d privat e boat dock around th e Holidi 



Shor es Subdivision on Lak e Jam e s. 

(e) Placement and Maintenance of Markers. Tl 
Board of Commissioners of Burke County 
designated a suitable agency for placement ar 
maintenance of the markers implementing th 
Rule, subject to the approval of the United Stati 
Coast Guard and the United States Army Corps 
Engineers, if applicable. With regard to maikii 
the regulated areas described in Paragraph (a) 
this Rule, all of the supplementary standards bsti 
in Rule .0301(g) of this Section shall apply. 

Statutory Authority G.S. 75A-3; 75A-15. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

ly otice is hereby given in accordance with G. 
150B-21.2 that the N.C. State Board of Cosmet 
Art Examiners intends to adopt rule(s) cited as 
NCAC 14L .0301 - .0302. 

1 he proposed effective date of this action 
November 2. 1992. 

1 he public hearing will be conducted at 1:00 p 
on August 31, 1992 at the Grove Towers, FiJ 
Floor, 1110 Navaho Drive, Raleigh. NC 27609. 

Keason for Proposed Action: To enact rules fc 
teachers licensed in other states who wish to I 
licensed to teach in North Carolina. 

\^omment Procedures: The record shall be opt 
for 30 days to receive written comments. Writtt 
comments should be received by the N.C. Sta 
Board of Cosmetic Art Examiners by August 2 
1992. to be considered as part of the heart) 
record. Comments should be addressed to Vici 
R. Goudie, Executive Secrelarv, N.C. State Boa 



922 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



Cosmetic Art Examiners, 1110 Navaho Dr., 
ileigh, N.C. 27609. Requests to speak must be in 
■iting and received by August 25, 1992 prior to 
aring. Speaking time 10 minutes. 

CHAPTER 14 - BOARD OF COSMETIC 
ART EXAMINERS 

SUBCHAPTER 14L - COSMETIC ART 
TEACHERS 

ECTION - .0300 - TEACHERS LICENSED 
IN OTHER STATES 

iJOl APPLICANTS LICENSED AS 

TEACHERS IN OTHER STATES 

yi individual who is licensed as a teacher in 
other state may be licensed as either a cosmetol- 



j[ teacher or a manicurist teacher in this State 
thout examination if the individual makes ap- 



Lcation on a form provided by the Board, shows 



the satisfaction of the Board that the individual 
;ets the requirements of Rule .0302 of this 
ction. and has paid the fees required in Rule 



214 of this Subchapter. The Board will not issue 



:osmetologv teacher's license under this Rule to 



vone who has failed the N.C. cosmetology 



tcher's examination within the past three years, or 



•^.C. manicurist teacher's license to any one who 



s failed the manicurist teacher's examination 
thin the past three years, and was subsequently 



ensed in another state. 



Jtutory Authority: G.S. 88-23. 

J02 REQUIREMENTS FOR OBTAINING A 
TEACHER'S LICENSE 

a) All applicants for any teacher's license under 
lie .0301 of this Section shall present evidence to 



Board that the applicant: 

(1) Currently holds a valid teacher's license 
in another state, issued by the state 
agency that licenses teachers in the field 
of cosmetic art; 

(2) is not the subject of a disciplinary 
proceeding or an unresolved complaint; 

(3) has a high school diploma or a high 
school graduation equivalency certifi- 
cate; and 

(4) within the last three years, has worked 
as a teacher in a cosmetic art school in 
the state of licensure, or in a different 
state other than North Carolina where 
the applicant was also licensed as a 
teacher, for a period equivalent to one 



year of full-time work. 
If the a pplicant has ever been subjected to dis- 
cipline by a licensing agency or had a complaint to 
a licensing agency resolved against the applicant. 
the applicant must submit to the Board information 
about the nature and details of the complaint and 
the action taken by the licensing agency. 

£b} An a pplicant for a license under Rule .0301 
of this Section as a cosmetology teacher shall 
present evidence to the Board that the a pplicant: 

(1) has, or has applied to the Board for and 
is entitled to, a license as a registered 
cosmetologist in this State; 

(2) has either: 

(A) practiced cosmetology in a cosmetic 
art shop for a period equivalent to five 
years of full-time work; or 

(B) completed an 800-hour teacher train- 
ing course in cosmetology approved 
by the state that issued the applicant's 
teacher's license and practiced cosmet- 
ology in a cosmetic art shop for a 
period equivalent to six months of 
full-time work; and 

(3) has passed a teacher's examination 
consisting of a practical skills demonstr- 
ation and The National Written Cosmet- 



ology Teacher's Examination given by 

that state's licensing body. 
(c) An a pplicant for a license under Rule .0301 
of this Section as a manicurist teacher shall present 
evidence to the Board that the a pplicant: 

(1) has, or has applied to the Board for and 
is entitled to. a license as a registered 
manicurist in this State; 

(2) has either: 

(A) practiced manicuring in a cosmetic art 
shop for a period equivalent to five 
years of full-time work; or 

rS) completed a 320-hour teacher training 
course in manicuring approved by the 
state that issued the applicant's 
teacher's license and practiced manicu- 
ring in a cosmetic art shop for a 
period equivalent to six months of 
full-time work; and 

(3) has passed a teacher's examination 
consisting of a practical skills demonstr- 
ation and The National Written Manicu- 



rist Teacher's Examination given by that 
state's licensing body. 



Statuton' Authority: G.S. 88-23. 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



923 



PROPOSED RULES 



iS otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Dietetics/Nutrition intends to adopt rule cited as 21 
NCAC 17 .0016. 

I he proposed effective date of this action is 
November 2. 1992. 

1 he public hearing will be conducted at 2:00 pm 
on August 21, 1992 at the Offices of Jordan, Price, 
Wall, Gray & Jones, 200 Hillsborough Place, 225 
Hillsborough Street, Raleigh, NC. 

Keason for Proposed Action: To adopt rules 
governing the conduct of investigations and hear- 
ings. 

K^omment Procedures: Requests to make oral 
comments at the hearing must be received by 
5:00pm on August 14, 1992; written comments 
must be received by the Board no later than 
5:00pm on September 2, 1992. Comments should 
be limited to 10 minutes. Requests and comments 
should he addressed to the Executive Secretary, 
North Carolina Board of Dietetics/Nutrition, P.O. 
Box 11321, Department LB, Charlotte, NC 28220. 

lL ditor 's Note: This Rule was filed as a tempora- 
ry adoption effective July 16, 1992 for a period of 
180 days or until the permanent rule is effective, 
whichever is sooner. 

CHAPTER 17 - NORTH CAROLINA 
BOARD OF DIETETICS/NUTRITION 

.0016 VIOLATIONS, COMPLAINTS, 

SUBSEQUENT BOARD ACTION, 
AND HEARINGS 

(a) The definitions contained in G.S. 150B-2 (1). 
(2). (2b). (4a). (4b). (5). (8). (8a). (8b) are adopted 
by reference within this Rule. In addition, the 
following definitions apply : 

(1) "Administrative Law Counsel" means an 
attorney whom the Board has retained 
to sene as procedural officer for con- 
tested cases. 

(2) "Prosecuting Attorney" means the at- 
torney retained by the Board to prepare 
and prosecute contested cases. 

£b) Before the North Carolina Board of 
Dietetics/Nutrition makes a final decision in any 



contested case, the person, applicant or license 
affected by such decision will be afforded 
administrative hearing pursuant to the provisions ci 



Article 3 A. Cha pter 150B of the North CaroUn 
General Statutes. 

(1) The paragraphs contained in this Rul 
shall apply to conduct of all conteste 



(2) 



cases heard before or for the Nort 
Carolina Board of Dietetics/Nutrition 
The following general statutes, rules 
and procedures apply and are adoptee 
by reference within this Rule, unles 



another specific statute or rule of th( 
North Carolina Board of Dietetics/Nutri 



tion provides otherwise: the Rules o 
Civil Procedure as contained in G.S 
lA-1. the Rules of Evidence pursuant t( 



G.S. Chapter 8C; the General Rules o; 
Practice for the Superior and Distric 



Courts as authorized by G.S. 7A-34 am 
found in the Rules Volume of the Nortli 



Carolina General Statutes and Canons 1 



2 and 3 of the Code of Judicial Conduct 



adopted in accordance with G.S. 7A 

10.1. 

(3) Every document filed with the Board 



shall be signed by the person, applicant. 



licensee, or the attorney who prepared 



the document, if it was prepared by an 
attorney, and shall contain his name 



title/position, address, and telephone 



number. If the individual involved is a 
licensed dietitian/nutritionist, the license 
number shall appear on all cor- 
respondence with the Board. An origin- 



al and one copy of each document shall 

be filed. 

(c) Anyone may complain to the Board alleging 



that a person, applicant or licensee has committed 



an action prohibited by G.S. 90-350 through 90- 
369 or the rules of the Board. 

(1) A person wishing to complain about an 
alleged violation of G.S. 90-350 through 



90-369 or the rules of the Board may 
notify the Executive Secretary. A com- 



plaint regarding the E.xecutive Secretary. 
the staff or the Board may be directed 
to the chair of the Board or any Board 
member. 



(2) The initial notification of a complaint 
may be in writing, by telephone, or by 
personal visit to the Executive 
Secretary's office. 

(3) Upon receipt of a complaint, the Execu: 
tive Secretary, unless the health and 



924 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



(2] 



m 



safety of the public otherwise requires, 
shall send to the complainant an ack- 
nowledgement letter, and request the 
complainant complete and file a com- 
plaint form before further action can be 
taken. 

(d) An Investigator and/or other authorized 
Board staff shall investigate a complaint and may 
take one or more of the following actions: 

(1) determine that an allegation is ground- 
less and dismiss the complaint: 
determine that the complaint does not 
come within the Board's jurisdiction, 
advise the complainant and, if possible, 
refer the complainant to the a ppropriate 
governmental agency for handling such 
complaints; 

determine that a nonlicensed person has 
committed a prohibited action and take 
appropriate legal action against the 
violator; 

(4) determine that a licensee has violated 
the Act and/or the rules of the Board 
and propose denial of renewal of 
license, revocation or suspension of 
license, reprimand, or imposition of 
probationary conditions on a licensee. 

(e) Whenever a complaint is dismissed or a 
complaint file closed, the Executive Secretary will 
give a summary report of the final action to the 
Board, the complainant, and the accused part\'. 

(Q In accordance with G.S. 150B-3(c). a license 
may be summarily suspended if Board finds that 
the public health. safet\'. or welfare requires emerg- 
ency action. Such a finding shall be incorporated 
with the order of the Board and the order shall be 
effective on the date specified in the order or on 
service of the certified copy of the order at the last 
known address of the licensee, whichever is later, 
and shall continue to be effective during the proce- 
edings. Failure to receive the order because of 



refusal of service or unknown address does not 



invalidate the order. Proceedings shall be com- 
menced in a timely manner. 

(g) The Board, through Us staff, shall issue a 
Letter of Charges only upon completion of an 
investigation of a written complaint and review 
with legal counsel or prosecuting attorney. 

(1) Subsequent to an investigation and 
validation of a complaint, a Letter of 
Charges will be sent on behalf of the 
Board to the person, applicant or licens- 
ee who is the subject of the complaint. 
(A) The Letter of Charges shall be served 
in accordance with G.S. lA-1. Rule 4^ 



Rules of Civil Procedure. 



m 



m 



£C) 

I 

£A} 

m 



(El 



The Letter of Charges serves as the 
Board's formal notification to the 
person that an allegation of possible 
violation(s) of the Act and/or the rules 
of the Board has been initiated. 
The Letter of Charges does not in and 
of itself constitute a contested case. 
The Letter of Charges shall include the 
following: 
a short and plain statement of the 
factual allegations; 

a citation of the relevant sections of 
the statutes and/or rules involved; 
notification that a settlement con- 
ference will be scheduled upon reque- 
st; 

explanation of the procedure used to 
govern the settlement conference; 
notification that if a settlement con- 
ference is not requested, or if held, 
does not result in resolution of the 
case, an administrative hearing will be 
scheduled; and 

if applicable, and in accordance with 
Board-adopted policy, an offer of 
voluntary surrender or reprimand also 
may be included in specified types of 
alleged violations of the Act. 
A case becomes a contested case after 
the agency and the person, applicant or 
licensee do not agree to a resolution of 
the dispute through a settlement con- 
ference or either the agency or the pers- 
on, applicant or licensee requests an 
administrative hearing, 
(h) No Board member shall discuss with any 
party the merits of ani; case pending before the 
Board. Any Board member who has direct knowl- 
edge about a case prior to the commencement of 
the proceeding shall disqualify himself from any 
participation w ith the majority of the Board hearing 
the case. 

(i) A settlement conference, if requested by the 
person is held for the purpose of attempting to 
resolve a dispute through informal procedures prior 
to the commencement of formal administrative 
proceedings. 

(1) The conference shall be held in the 
offices of the Board, unless another site 
is designated by mutual agreement of 
all involved parties. 

(2) All parties shall attend or be represented 
at the settlement conference. The par- 
ties will be prepared to discuss the 



(31 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



925 



PROPOSED RULES 



alleged violations and the incidents on 
\^hich these are based. 
(3) At the conclusion of the daj; during 
which the settlement conference is held. 
a form must be signed by all parties 
which indicates whether the settlement 
offer is accepted or rejected. Sub- 
sequent to this decision: 
(A) if a settlement is reached, the Board 
will fon\ard a written settlement agre- 
ement containing all conditions of the 
settlement to the other parts(ies); or 
{B) if a settlement cannot be reached, the 
case \^ill proceed to a formal ad- 
ministrative hearing. 
(i) Informal disposition mav be made of a 
contested case or an issue in a contested case by 
stipulation, agreement or consent order at any time 
pnor to or during the heanng of a contested case. 
(k) The Board shall give the parties in a con- 
tested case a Notice of Hearing not less than 15 
calendar davs before the hearing. The Notice shall 
be given in accordance with G.S. 150B-38(b) and 
(c). The Notice shall include: 

(1) acknowledgement of senice. or at- 
tempted sersice. of the Letter of Charg- 
es incompliance with Paragraph (g) of 
this Rule; 

(2) date, time, and place of the hearing; 

(3) a short and plain statement of the fac- 
tual allegations; 

(4) a citation of the relevant sections of the 
statutes and/or rules involved; 

(5) notification of the right of a parts' to 
represent himself or to be represented 
by an attomev; 

(6) a statement that, pursuant to Paragraph 
(n) of this Rule, subpoenas mav be 
requested by the licensee to compel the 
attendance of witnesses or the produc- 
tion of documents; 

(7) a statement advising the licensee that a 
notice of representation, containing the 
name of licensee's counsel, if anv. shou- 
Id be filed with the Board not less than 
10 calendar days pnor to the scheduled 
date of the heanng; 

(8) a statement advising the licensee that a 
list of witnesses for the licensee should 
be filed with the Board not less than H) 
calendar davs prior to the scheduled 
date of the hearing; and 

(9) a statement advising the licensee that 
failure to appear at the hearing mav 
result in the allegations of the Letter of 



Charges being taken as true and thatth 
Board mav proceed on that assumption 



ID Prehearing conferences ma\ be held t( 
simplify^ the issues to be determined, to obtaii 
stipulations in regards to foundations for testimom 



or exhibits, to obtain stipulations of agreement oi 
nondisputed facts or the application of particula 



laws, to consider the proposed witnesses for eacl 
party, to identifi- and exchange documentar, 



evidence intended to be introduced at the hearing 



and to consider such other matters that mav b 
necessan or advisable for the efficient and ex 
peditious conduct of the hearing. 

(1) The prehearing conference will be con- 
ducted in the offices of the Board, un- 
less another site is designated by mutual 
agreement of all parties. 



(21 



The preheanng conference shall be an 
informal proceeding and shall be con 



ducted by a Board-designated ad- 
ministrative law counsel. 
(3) All agreements, stipulations, amend- 



ments, or other matters resulting from 
the prehearing conference shall be in 
writing, signed by all parties, and intro 



duced into the record at the beginning 



of the formal administrative hearing. 



(m) Prehearing conferences or administrative 



hearings conducted before a majority of Board 



members shall be held in the county where the 
Board maintains its principal office, or by mutual 



consent in another location which will better 



promote the ends of justice or better serve the 
convenience of witnesses or the Board. For those 



proceedings conducted by an Administrative La^^ 
Judge, the venue will be determined in accordance 



with G.S. 150B-38(e). All hearings conducted by 
the Board shall be open to the public, 
(n) The Board, through its Executive Secretan-. 



mav issue subpoenas for the Board or a licensee, in 
preparation for, or in the conduct of a contested 
case. 

(1) Subpoenas for the attendance and testi- 



monv of witnesses or the production of 
documents or information, either at the 
hearing or for the purposes of dis- 
covery, shall be issued in accordance 
with G.S. 150B-39 and G.S. lA-1. Rule 

(2) Requests by a licensee for subpoenas 
shall be made in writing to the Execu- 
tive Secretary and shall include the 
following: 
(A) the full name and home or business 
address of all persons to be subpoe- 



926 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



naed; and 
(B) the identification, with specificity, of 
any documents or information being 
sought. 

(3) Subpoenas shall include the date, time. 
and place of the hearing and the name 
and address of the party requesting the 
subpoena. In the case of subpoenas for 
the purpose of discovery, the subpoena 
shall include the date, time, and place 
for responding to the subpoena. 

(4) Subpoenas shall be served as in the 
manner provided by G.S. 150B-39 and 
G.S. lA-1. Rule 45. The cost of service, 
fees, and expenses of any witnesses or 
documents subpoenaed shall be paid in 
accordance with G.S. 150B-39(c) and 
G.S. 7A-314. 

(5) Objections to subpoenas shall be heard 
in accordance with G.S. 150B-39 and 
G.S. lA-1. Rule 45. 

(o) All motions related to a contested case, 
except motions for continuance and those made 
during the hearing, shall be in writing and sub- 
mitted to the Board at least 10 calendar days 
before the hearing, if any, is to be held either on 
the motion or the merits of the case. Prehearing 
motions will be heard at a prehearing conference or 
at the contested case hearing prior to the com- 
mencement of testimony. The designated ad- 
ministrative law counsel will hear the motions and 
the response from the non-moving party pursuant 
to Rule 6 of the General Rules of Practice for the 
Superior and District Courts and rule on such 
motions. If the prehearing motions are heard by an 
Administrative Law Judge from Office of Ad- 
ministrative Hearings, the provisions of G.S. 150B- 
40(e) shall govern the proceedings. 

(p) Motions for a continuance of a hearing may 
be granted upon a showing of good cause. 

(1) Unless time does not permit, a request 
for a continuance of a hearing shall be 
made in writing and received by the 
office of the Board no less than seven 
calendar days before the hearing date. 
In determining whether good cause 
exists, consideration will be given to the 
ability of the party requesting a con- 
tinuance to proceed effectively without 
a continuance. A motion for a con- 
tinuance filed less than seven calendar 
days from the date of the hearing shall 
be denied unless the reason for the 
motion could not have been ascertained 
earlier. Motions for continuance filed 



prior to the date of the hearing shall be 
ruled on by the Executive Secretary of 
the Board. All other motions for con- 
tinuance will be ruled on by the majori- 
ty of the Board members or Administra- 
tive Law Judge sitting at the hearing. 

(A) "Good cause" includes: death or in- 
capacitating illness of a party, represe- 
ntative, or attorney of a party' a court 
order requiring a continuance; lack of 
proper notice of the hearing; a sub- 
stitution of the representative or at- 
torney of a party if the substitution is 
shown to be required; a change in the 
parties or pleadings requiring postpon- 
ement; and agreement for a con- 
tinuance by all parties if either more 
time is clearly necessary to complete 
mandatory preparation for the case, 
such as authorized discovery, and the 
parties and the administrative law 
judge have agreed to new hearing date 
or parties have agreed to a settlement 
of the case that has been or is likely 
to be a pproved by the final decision 
maker. 

(B) "Good cause" shall not include: inten- 



£2) 



tional delay; unavailability of counsel 
or other representative because of 
engagement in another judicial or 
administrative proceeding unless all 
other members of the attorney's or 
representative's firm familiar with the 
case are similarly engaged, or if the 
notice of the other proceeding was 
received subsequent to the notice of 
the hearing for which the continuance 
is sought; unavailability of a witness 
if the witness testimony can be take 
by deposition, and failure of the at- 
torney or representative to properly 
utilize the statutory notice period to 
prepare for the hearing. 
During a hearing, if the appears in the 
interest of justice that further testimony 
should be received and sufficient time 
does not rema in to conclude the testim- 
ony, the Board shall either order the 
additional testimony taken by deposition 
or continue the hearing to a future date 
for which oral notice on the record is 
sufficient. In such situations and to 
such extent as possible, the seated mem- 
bers of tlie Board and the designated 
administrative law counsel shall receive 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



927 



PROPOSED RULES 



the additional testimony. In the event 
that new members of the Board or a 
different administrative law counsel 
must participate, a copy of the transcript 
of the hearing will be provided to them 
prior to the receipt of the additional 
testimony. 
(3) A continuance shall not be granted 
when to do so would prevent the case 
from being concluded within any statut- 
ory or regulatory deadline, 
(q) All hearings bv the Board will be conducted 
by a majority of members of the Board, except as 
provided in Subparagraph (1) of this Paragraph. 
The Board shall designate one of its members to 
preside at the hearing. The Board shall designate 
an administrative law counsel as procedural officer 
to conduct the proceedings of the hearing. The 
seated members of the Board shall hear all eviden- 
ce, make findings of fact and conclusions of law, 
and issue an order reflecting a majority decision of 
the Board. 

(1) When a majority of the members of the 
Board is unable or elects not to hear a 
contested case, the Board shall request 
the designation of an administrative law 
judge from the Office of Administrative 
Hearings to preside at the hearing. The 
provisions of Article 3 A, Chapter 150B 
and 21 NCAC 17 .0016 shall govern a 
contested case in which an administra- 
tive law judge is designated as the Hea- 
ring Officer. 

(2) In the event that any part\ or attorney 
at law or other representative of a party 
engages in behavior that obstructs the 
orderly conduct of proceedings or 
would constitute contempt if done in the 
General Court of Justice, the Board may 
apply to the applicable superior court 
for an order to show cause wh\ the 
person(s) should not be held m con- 
tempt of the Board and its processes. 

(r) All parties have the right to present evidence, 
rebuttal testimony, and argument with respect to 
the issues of law and policy, and to cross-examine 
witnesses. The North Carolina Rules of Evidence 
as found in Chapter 8C of the General Statutes 
shall apply to contested case proceedings, except as 
provided othenvise in this Rule and G.S 150B-41. 
(1) Sworn affidavits may be introduced by 
mutual agreement from all parties. 
All oral testimony shall be under oath 
or affirmation and shall be recorded. 



01 



Unless othenyise stipulated bv al] par- 



ties, witnesses are excluded from th 

hearing room until such time that the 

have completed their testimony an 

have been release. 

(s) Upon compliance with the provisions of GJ 

150B-40(e). if applicable, and OS, 150B-42. an 

review of the official record, as defined in GJ 

150B-42(b) and (clothe Board shall make a writte: 

final decision or order in a contested case. 

(1) The final decision or order will be rend 
ered by the Board meeting in quorun 



(2} 



£A] 



and by a majority of those present am 
voting. 

The decision or order shall be mad 
based on: 
competent evidence and argument 



presented during the hearing and madi 



a part of the official record in accor 



(C) 



dance with G.S. 150B-41 and Paragra 

ph (r) of this Rule; 

stipulations of fact; 

matters officially noticed; 

other items in the official record tha 

are not excluded by G.S. 150B-4I anc 



m 



Paragraph (r) of this Rule. 
All final decisions or orders shall b 
signed by the Executive Secretary anc 
the Chair of the Board. 
(4) A copy of the decision or order shall b( 



sened as in the manner provided b} 
G.S. 150B-41(a). The cost of service 



fees, and expenses of any witnesses a 
documents subpoenaed shall be paid ir 
accordance with G.S. 150B-39(c) anc 
G.S. 7A-314. 
(t) The official record of a contested case 

available for public inspection upon reasonable 

request. 

(1) The official record shall be prepared ii 
accordance with G.S. 150B-42(b) anc 
£cl 

(2) Contested case hearings shall be record 



ed either by a magnetic type recording 



system or a professional court reportei 

using stenomask or stenotype. 

(3) Transcripts of proceedings during which 



oral evidence is presented will be made 
only upon request of a part\'. Transcript 



costs shall include the cost of an origin- 
al for the Board. Cost of the transcript 



or part thereof or copy of said transcript 
or part thereof which a party requests 
shall be divided equally among the 
party(ies) requesting a transcript. Cost 



shall be determined under supenision 



928 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



PROPOSED RULES 



of the Executive Secretary. 

Statutory Authority: G.S. 90-356; 90-363. 

TITLE 24 - INDEPENDENT AGENCIES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Housing Finan- 
ce Agency intends to amend rule(s) cited as 24 
NCAC ID .0101, .0301. 

I he proposed effective date of this action is 
November 1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on August 18, 1992 at the North Carolina 
Housing Finance Agency, 3300 Drake Circle, Suite 
200, Raleigh, NC 27607-3300. 

Jxeason for Proposed Actions: To implement a 
new mortgage financing program for low and 
moderate first-time home buyers. 

K^omment Procedures: Written comments may be 
submitted to the APA Coordinator by September 2, 
1992. Oral comments may be presented at the 
hearing. 

CHAPTER 1 - N.C. HOUSING FINANCE 
AGENCY 

SUBCHAPTER ID - SINGLE FAMILY 
MORTGAGE PURCHASE PROGRAM 

SECTION .0100 - GENERAL 
INFORMATION 

.0101 OBJECTFVES 

(a) One of the basic objectives of the agency is 
to finance the making of mortgage loans to persons 
and families of lower income to be used to enable 
such persons and families to purchase homes; 
agency has established a financing program to 
achieve this objective (herein referred to as the 
"single family mortgage purchase program"). 

(b) There are twe three types of agency financ- 
ing activity under the single family mortgage 
purchase program: firstr 

(1) under the forward commitment mortga- 
ge purchase segment of the program 
(hereinafter referred to as "forward 
commitment") the agency agrees with a 



lender tliat if the lender will make mort- 
gage loans to persons and families of 
lower income under certain terms and 
conditions specified in the North Caroli- 
na Housing Finance Agency mortgage 
purchase agreement, then the agency 
will buy such mortgage loans from the 
lender; s econd. 

(2) under the existing mortgage purchase 
segment of the program (hereinafter 
referred to as "existing"), the agency 
agrees with a lender to purchase exist- 
ing mortgage loans under the terms 
specified in the North Carolina Housing 
Finance Agency existing mortgage 
purchase agreement, pursuant to which 
the agency reviews a lender's portfolio 
of existing mortgage loans and selects 
certain mortgage loans which it pur- 
chases on the condition that lender 
(seller) expeditiously reinvest the proce- 
eds of this sale in mortgage loans to 
persons and families of lower and mod- 
erate income; and 

(3) under the mortgage backed securities 
segment of the program the agency 
agrees with a lender to purchase or 
participate in the purchase of federally- 
insured securities under terms specified 
in the North Carolina Housing Finance 
Agency mortgage loan origination, sale 
and servicing agreement, the proceeds 
of which are used to make new mortga- 
ge loans to income-eligible families. 

Statutory Authority G.S. 122A-5. 

SECTION .0300 - CONTRACTS AND 
FORMS 

0301 ELIGIBLE LENDER CONTRACT 
FORMS 

(a) Qualified lenders shall establish their contrac- 
tual relationships with the agency by entering into 
the "North Carolina Housing Finance Agency 
Forward Commitment Mortgage Purchase Agree- 
ment", and the "North Carolina Housing Finance 
Agency Existing Mortgage Purchase Agreement" 
and the "North Carolina Housing Finance Agency 
Mortgage Loan Origination. Sale and Servicing 
Agreement" form contracts. 

(b) Under the "Forward Commitment Mortgage 
Purchase Agreement" form contract, the agency 
agrees to purchase from the lender and the lender 
agrees to sell a given amount of mortgage loans 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



929 



PROPOSED RULES 



\\hich are a first lien on lands and improvements 
constituting mortgagor occupied, single family, 
residential umts. which loans shall be made by 
lender to persons or families of lower income in 
accordance with the act. Lender's interest in the 
mortgage loan and the Deed of Trust shall be 
assigned to the agenc>- at purchase. Lender must 
comply with all applicable state, local and federal 
laws and regulations. Appraisal is required. The 
loan term shall not e.xceed 30 years. Monthly 
payment of principal and interest and level pay- 
ment amortization is required. The mortgagor must 
qualify' as a person or family of lower income as 
defined by the act and m the rules and regulations 
of the agency. Mortgage insurance or guarant>' is 
required as a condition of purchase of the mortgage 
loan. The agency shall not be obligated to pur- 
chase any mortgage loans under an\- such agree- 
ment unless the agency has approved the making 
of such mortgage loans in accordance with the act. 
Lender shall senice the mortgage loans purchased 
pursuant to this agreement in accordance with the 
senicing agreement. Misrepresentation or breach 
of warrant} by the lender as to a mortgage loan 
shall entitle agency to require lender to repurchase 
such mortgage loan. All obligations under this 
contract are subject to the successful sale and 
deli\er\- by agency of its bonds and receipt of the 
bond proceeds. 

(c) Under the "Existing Mortgage Purchase 
Agreement" form contract, the agency agrees to 
purchase from the lender and the lender agrees to 
sell, a given amount of interest beanng obligations 
owned by the lender on single-family residential 
umts w hich are mortgagor occupied. These mortg- 
age loans must be insured or guaranteed, and either 
made to persons or families of lower income as 
defined in the act and the rules and regulations of 
the agency or made to persons and famihes not of 
lower income provided the agency makes the 
determination required by the act that mortgage 
loans made to persons and families of lower 
income for residential housing are not available for 
purchase by the agency upon reasonable terms and 
conditions. The mortgage loans shall provide for 
payment of pnncipal and interest at monthly 
intenals and for level payment amortization. All 
interest m the mortgage loan and the note and 
Deed of Trust shall be assigned to the agency at 
purchase. Mortgage insurance or guarant)' by the 
FHA. V.A or a qualified insurer is required as a 
condition of purchase of the mortgage loan. The 
lender agrees that within 180 days of receiving the 
sale proceeds for the mortgage loans sold under 
this agreement that the lender w ill commit to and 



will promptly reinvest the sale proceeds in neu 
mortgage loans to lower income persons and 
families. The lender shall submit evidence to the 
agency of the making of such new mortgage loans 
All obligations made under this contract are subject 
to the successful sale and deliver, by the agency oi 
Its bonds and receipt by the agency of the bond 
proceeds. The subject mortgage loan must be a 
\alid first lien on the property. Unpaid principal 
balance and interest on the mortgage loan must be 
accurately stated by lender. Representations by 
lender as to counterclaims available against the 
mortgage loan and modification, satisfaction, 
cancellation and subordination must be true 
Lender must have complied with all applicable 
federal, state and local laws and rules and regula- 
tions. Misrepresentation or breach of warrant)' by 
lender as to a mortgage loan shall entitle agency to 
require lender to repurchase such mortgage loan 

(d) Under the "Mortgage Loan Origination. Sale 
and Ser\icing Agreement." the agency agrees to 
issue single familv revenue bonds be used as 
follows: 

a portion of the proceeds will be made 



ill 



a\ailable to the Trustee to purchase 



certain fully -modified mortgage pass 



through certificates guaranteed bv the 
Goverrmient National Mortgage Associ- 



ation (GNMA). The certificates will be 
backed by mortgage loans originated 



ill 



and funded bv the Lender and pur- 
chased by the Senicer. 
a portion of the proceeds will be made 



a\ailable to the Trustee to purchase 



single pool, guaranteed pass-through 



Federal National Mortgage Association 



(TNMA) Mortgage Backed Securities. 



guaranteed as to timelv payment of 
principal and interest by FNMA and 
backed by the Lender and purchased by 
the Ser\icer. 

Statutorv Auihont\' G.S. 122A-5. 



930 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



RRC OBJECTIONS 



I he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 143B- 
30.2(c). State agencies are required to respond to RRC as provided in G.S. ]43B-30.2(d). 



AGRICULTURE 

Structural Pest Control Division 

] NCAC 34 .0406 - Spill Control 
NCAC 34 .0603 - Waivers 



RRC Objection 07'16.'92 
RRC Objection 07:16/92 



2 NCAC 34 .0902 - Financial Responsibility 








RRC Objection 


07. 16/92 


ECONOMIC AND COMMUNITY DEVELOPMENT 












ABC Commission 












4 NCAC 2R .0702 - Disciplmaiy Action of Employee 








RRC Objection 


05/21. '9 2 


Rule Returned to Agency 










06/1S./92 


4 NCAC 2R .1205 - Closing of Store 








RRC Objection 


05. '21 92 


Agency Repealed Rule 








Obj. Removed 


06'18'92 


4 NCAC 2S .0503 - P re-Orders 








RRC Objection 


05 '21 '92 


Rule Returned to Agency 










06/18/92 


ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 








Coastal Management 












15A NCAC 7H .0306 - General Use Standards for Ocear 


Hazard A 


■eas 


RRC Objection 


05 '21. '9 2 


Rule Returned to Agency 










06/18/92 


Departmental Rules 












15A NCAC IJ .0204 - Loans from Emergency Revolving 


Loan 


Accounts 


RRC Objection 


06/1 8.^9 2 


I5A NCAC IJ .0302 - General Provisions 








RRC Objection 


06/18/92 


I5A NCAC IJ .0701 - Public Necessity: Health: Safety and IV 


elfare 




RRC Objection 


06/18/92 


Environmental Health 












15A NCAC ISA .3101 - Definitions 








RRC Objection 


06 18 92 


Agency Revised Rule 








Obj. Removed 


06 18 92 


Environmental Management 












15A NCAC 20 .0302 - Self hnurance 








RRC Objection 


06 '18/92 


Health: Epidemiology 












15A NCAC 1911 .0601 - Birth Certificates 








RRC Objection 


06/18./92 


Agency Revised Rule 








Obj. Removed 


06 '18 '92 


Soil and Water Conservation 












7:9 NORTH CAROLINA REGISTER 


August 3, 


1992 


931 



RRC OBJECTIONS 



ISA NCAC 6E .0007 - Cost Share Agreement 
Agency Revised Rule 

Wildlife Resources and Water Safety 

J5A XCAC JOE .0004 - Use of Areas Regulated 

HUMAN RESOURCES 

Aging 

10 SCAC 22R .0301 - Definitions 
Agency Revised Rule 

Day Care Rules 

10 XCAC 46D .0305 - Administration of Program 

Agency Revised Rule 
10 XCAC 46D .0306 - Records 

Agency Revised Rule 

Mental Health: General 



RRC Objection 06 18 9. 
Obj. Removed 06 189. 



RRC Objection 06 18'9: 



RRC Objection 07/16 9 
RRC Objection 07/16 92 



RRC Objection 06 18/92 

Obj. Removed 06 18/92 

RRC Objection 06 18/9. 

Obj. Removed 06 18/92 



10 XCAC 14M .0704 - Program Director 


RRC Objection 


0521 92 


Agency Revised Rule 


Obj. Removed 


06 18 92 


INSURANCE 






Departmental Rules 






// XCAC 1 .0106 - Organization of the Department 


RRC Objection 


06 18 92 


Agency Revised Rule 


Obj. Removed 


06 18 92 


Multiple Employer Welfare Arrangements 






// XCAC 18 .0019 - Description of Forms 


RRC Objection 


06 18/92 


Seniors' Health Insurance Information Program 






// XCAC 17 .0005 - SHllP Inquiries to Insurers and Agents 


RRC Objection 


06 18/92 


LICENSING BOARDS AND COMMISSIONS 






Dietetics/Nutrition 






21 XCAC 17 .0014 - Code of Ethics for Professional Practice Conduct 


RRC Objection 


05 21 92 


Agency Revised Rule 


RRC Objection 


05 21 92 


Agency Revised Rule 


Obj. Removed 


06 18 92 


STATE PERSONNEL 






Office of State Personnel 






25 XCAC IE .1301 - Purpose 


RRC Objection 


07 16/92 


25 XCAC IE .1302 - Policy 


RRC Objection 


01 16/92 


932 7:9 NORTH CAROLINA REGISTER Augusts, 


1992 





RRC OBJECTIONS 



25 NCAC IE .1303 - Administration RRC Objection 
25 NCAC IE .1304 - Qualifying to Participate in Voluntary- Shared Leave Prgm RRC Objection 

25 NCAC IE .1305 - Donor Guidelines RRC Objection 

25 NCAC IE .1306 - Leave Accounting Procedures RRC Objection 

25 NCAC IH .0603 - Special Recruiting Programs RRC Objection 

Agency Repealed Rule Obj. Removed 

25 NCAC 11 .1702 - Employment of Relatives RRC Objection 

25 NCAC 11 .1903 - Applicant Information and Application RRC Objection 

25 NCAC II .2401 - System Portion 1: Recruitment, Selection, & .Advancement RRC Objection 

25 NCAC II .2402 - System Portion II: Classification Compensation RRC Objection 

25 NCAC II .2403 - System Portion HI: Training RRC Objection 

25 NCAC II .2404 - System Portion I]': Employee Relations RRC Objection 

25 NCAC II .2405 - System Portion V: Equal Emp Oppty Affirmative Action RRC Objection 

25 NCAC II .2406 - System Portion 17; Political Activity RRC Objection 

25 NCAC IJ .1005 - Eligibility for Services RRC Objection 

Agency Revised Rule Obj. Removed 



07 16 92 
07 16 92 
07/16/92 
07/16/92 
05/2I'92 
06/18/92 
07 16' 9 2 
07 16 92 
07/16 92 
07 16 92 
07 16 92 
0716 92 
07 16 92 
07 16 92 
05 21 92 
06/18 92 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



933 



RULES INVALIDATED BY JUDICIAL DECISION 



I Ins Section of the Register lists the recent decisions issued hy the Xorth Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West. Administrati\ e Law Judge with the Office of Administrati\e Hearings, declared two portions 
of Rule 1 NCAC 5 A .0010 \oid as applied in Stauffer Information Systems, Petitioner v. The Xorth Carolina 
Department of Community Colleges and The Xorth Carolina Department of Administration, Respondent ana 
The University of Southern California, Interx'enor-Respondent (92 DOA 0666). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton. Adniirustratue Law Judge with the Office of Admimstratn e Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIAXGLE (AIDS Coalition to Unleash Power Triangle) 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the Stale of Xorth Carolina, 
Ron Levine, as Assistant Secretaiy of Health and State Health Director for the Department of Environment. 
Health, and Xatural Resources of the State of Xorth Carolina. William Cobey, as Secretary of the Department 
of Environment. Health, and Xatural Resources of the State of Xorth Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the Xorth Carolina Department of Environment, Health, and 
Xatural Resources, Wayne Bobbin Jr., as Chief of the HIV STD Control Branch of the North Carolina 
Department of Environment, Health, and Xatural Resources, Respondents (91 EHR 0818). 



934 7:9 NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings. (919) 733-2698. 



KEY TO CASE CODES 



VBC 

3DA 

ME 
ftMS 



Alcoholic Beverage Control Commission DST 

Board of Dental Examiners EDC 

Board of Medical Examiners EHR 
Board of Mortuan Science 



Department of State Treasurer 
Department of Public Instniction 
Department of En\ ironment. Health, and 
Natural Resources 



30G 


Board of Geologists 


ESC 


Employment Securit> Commission 


BON 


Board of Nursing 


HAF 


Hearing Aid Dealers and Fitters Board 


300 


Board of Opticians 


HRC 


Human Relations Committee 


:fa 


Commission for Auctioneers 


IND 


Independent Agencies 


:oM 


Department of Economic and Community 


INS 


Department of Insurance 




De\elopment 


LBC 


Licensing Board for Contractors 


:ps 


Department of Crime Control and Public Safet> 


MLK 


Milk Commission 


:sE 


Child Support Enforcement 


NHA 


Board of Nursing Home Administrators 


)AG 


Department of Agriculture 


OAH 


Office of Administrative Hearings 


DCC 


Department of Communit> Colleges 


OSP 


Office of State Personnel 


)CR 


Department of Cultural Resources 


PHC 


Board of Plumbing and Heating 


)CS 


Distribution Child Support 




Contractors 


)HR 


Department of Human Resources 


POD 


Board of Podiatr* Examiners 


)0A 


Department of Administration 


SOS 


Department of Secretar\ of State 


)0J 


Department of Justice 


SPA 


Board of Examiners of Speech and Language 


)0L 


Department of Labor 




Pathologists and Audiologists 


)SA 


Department of State Auditor 


WRC 


Wildlife Resources Commission 








CASE 




FILED 




CASE NAME 




NUMBER 


ALJ 


DATE 




Anne R. GwaltncN . Milton H. Askew. Jr. 












and Anna L Askew 












V. 




89 DHR 0699 


Reillv 


07/17/92 




EHR and Pamlico County Health Department 












Centurs Care of Laurinburg. Inc. 












\'. 




91 DHR 0257 


West 


06/.^0/92 


DHR. Di\ ision of Facility Sen ices. Licensure Sectic 


n 










Wade Charles Brown. Jr. 












\ . 




91 CPS ().'^45 


Chess 


07/08/92 




N C Crime Victims Compensation Commission 












Lisa M. Reichstein 












\ . 




91 OSP 0662 


Nesnow 


06/24/92 


Office of Student Financial Aid. East Carolina Uni\ ersitv 










7:9 NORTH CAROLINA REGISTL 


R August 3, 1992 935 



CONTESTED CASE DECISIONS 








1 




CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 




Alcoholic Beverage Control Commission 

V. 

Daniels Investments. Inc., t/a Leather & Lace - East 
4205 Monroe Road. Charlotte. N.C, 28205 


91 ABC 0799 


Mann 


07/14/92 




ACT-UP Tnangle (AIDS Coalition to Unleash Power 
Triangle. Steven Hams, and John Doe 

Commission for Health Ser\ ices of the State of N.C, Ron 

Le\ ine. as Assistant Secretan of Health and State Health 

Director for EHR of the State of N.C, William Cobey. as 

Secretarv' of EHR of the State of N.C. Dr. Rebecca 

Meriwether, as Chief. Communicable Disease Control 

Section of the N.C EHR. Wayne Bobbitt. Jr.. as Chief of 

the HIV/STD Control Branch of the N C.EHR 


91 EHR 0818 


Becton 


07/08/92 




Jane C O'Malley. Melvin L Cartwright 

\'. 

EHR and Distnct Health Department Pasquotank-Perquima- 

ns-Camdcn-Chow an 


91 EHR 0838 


Becton 


07/02/92 




Grotgcn Nursing Home, Inc., Bntthaven, Inc. 

v. 

Certificate of Need Section. Di\ ision of Facility Svcs. DHR 


91 DHR 0964 
91 DHR 0966 


Nesnow 


07/06/92 




Ramona S. Smith. R.N. 

\ . 

N.C Teachers'/St Emps' Comp Major Medical Plan 


91 DST 0984 


Chess 


06/18/92 




Walter McGlone 

\. 

DHR. Division of Social Senices. CSE 


91 CSE 1030 


Morrison 


07/13/92 




William Watson 
DHR. Di\ ision of Social Ser\ ices. CSE 


91 CSE 1047 


Becton 


07/08/92 




Catawba Memorial Hospital 

\ . 

DHR. Division of Facilit)' S\'cs. Certificate of Need Section 

and 
Fr\c Regional Medical Ctr. Inc. and Amireit (Fr\e). Inc. 

and 

Thoms Rehabilitation Hospital Health Ser\ices Corp. 

and 

Fr\e Regional Medical Ctr. Inc. and Amireit (Fr\e). Inc. 

\ . 
DHR. Di\ ision of Facility Svcs, Certificate of Need Section 

and 

Thoms Rehabilitation Hospital Health Senices Corp. 

and 

Catawba Memorial Hospital 


91 DHR 1061 
91 DHR 1087 


Reilly 


07/13/92 


■ 


1 




936 7.-^ NORTH CAROLINA REGISTt 


'R August 3, 


1992 




^ 



1 

CONTESTED CASE DECISIONS 










CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 




Wade A. Burgess 

V. 

DHR. Division of Social Senices. CSE 


91 CSE I1I4 


Gray 


07/01/92 




Ham' L. King 

V. 

Department of Transportation 


91 OS? 1162 


Morgan 


07/13/92 




Isaac H. Galloway 

V. 

DHR. Division of Social Senices. CSE 


91 CSE 1190 


Reillv 


06/30/92 




Russell A. Barclift 

V. 

DHR. Division of Social Services. CSE 


91 CSE 1207 

92 CSE 0275 


Reilly 


06/30/92 




Herman Edward Main II 

V. 

DHR. Division of Social Services. CSE 


91 CSE 1225 


Nesnow 


07/07/92 




Albert Louis Stoner III 

V. 

DHR. Division of Social Services, CSE 


91 CSE 1244 


Gray 


07/01/92 




James E. Greene 

V. 

DHR. Di\ ision of Social Senices. CSE 


91 CSE 1245 


Nesnow 


07/14/92 




Donald R. Allison 

V. 

DHR, Caswell Center 


91 OS? 1427 


Reilly 


06/30/92 




Pegg>' N. Barber 

V. 

The University- of North Carolina at Chapel Hill 


92 OS? 0120 


Reilly 


07/13/92 




Alcoholic Beverage Control Commission 

V. 

John Wade Lewis, t/a Tasty- Grill 


92 ABC 0145 


Nesnow 


07/15/92 




Clifton R, Johnson 

V. 

O'Bern Center. Department of Human Resources 


92 OSP0381 


West 


07/08/92 




Northview Mobile Home Park 

V. 

Department of Environment. Health, and Natural Resources 


92 EHR 0507 


Reilly 


07/13/92 




Alice Hunt Davis 

V. 

Department of Human Resources 


92 OSP 0526 


West 


07/16/92 














7:9 NORTH CAROLINA REGISTE 


'R August 3, 


1992 


937 



CONTESTED CASE DECISIONS 



CASE NAME 



CASE 

>aJMBER 



ALJ 



FILED 
DATE 



John W. Surles 
Crime Victims Compensation Commission 



92 CPS 0595 



Reillv 



07/13/92 



Stauffer Information Systems 

V. 

Department of Community' Colleges and the N.C. 

Department of Administration 

and 

The Uni\ersiU' of Southern California 



92 DOA 0666 



West 



07/08/92 



L. Stan Bailey 
Chancellor Moran and UNC-Greensboro 



92 OSP 0679 



West 



07/10/92 



938 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



5TATE OF NORTH CAROLINA 
OUNTY OF MECKLENBLIRG 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
91 ABC 0799 



sJ.C. ALCOHOLIC BEVERAGE 
rONTROL COMMISSION, 

Petitioner 



3ANIELS EWESTMENTS, INC., 
r/A LEATHER & LACE - EAST 
1205 MONROE ROAD 
CHARLOTTE, NC 28205, 
Respondent 



RECOMMENDED DECISION 



This contested case was heard on the 11th day of May. 1992. at the Office of Administrative Hearings, 
Raleigh. Wake County . North Carolina, before Julian Mann. III. Chief Administrative Law Judge. The record 
:Iosed with the filing of proposed Findings of Fact and Conclusions of Law on June 1. 1992. 



For Petitioner: 



For Respondent: 



APPEARANCES 

Glenn B. Lassiter. Jr. 

Agency Legal Specialist 

N. C. Alcoholic Beverage Control Commission 

P O Bo.\ 26687 

Raleigh. North Carolina 27611-6687 

ATTORNEY FOR PETITIONER 

Joseph L. Ledford 

Rawls, Dickinson & Ledford 

Attorneys At Law 

923 Law Building 

730 E. Trade Street 

Charlotte. North Carolina 28202 

ATTORNEY FOR RESPONDENT 



WITNESSES 



For Petitioner: 
For Respondent: 



Robert D. Sellers 

Da\ id James Craven 
Walter Da\ id Baucom. Jr 



EXHIBITS 



For Petitioner: 
For Respondent: 



None 



Respondent's E.xhibit #la. lb. Ic, Id, le and If, 
Respondent's Exhibit #2 and #3. 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



939 



CONTESTED CASE DECISIONS 



ISSUES ' 

Whether the Respondent or its employee \iolated the ABC laws by: 

1. Employee engaging in disorderly conduct on the licensed premises on or about July 17, 1991 
at 12:18 am . m violation of ABC Commission Rule 4 NCAC 2S.0210. 

2. Knowingly allowing employee to engage in unlawfiil acts on the licensed premises; to wit 
two counts of Homicide, one count of Assault With a Deadly Weapon With Intent to Kill, one count o 
Possession of a Firearm by a Felon, on or about July 17. 1991. at 12:18 a.m.. in \iolation of G.S 18B 

l()()5(a)(?). 

3. Emplo\ ing an unsuitable person who has been com icted of a felon\ within three years, or 
the licensed premises, on or about July 17. 1991. at 12:18 a.m.. in \iolation of G S. 18B-1003(c). 

4. (b) What penalty, if any. should be imposed under G.S. 18B-104? 

STIPULATIONS 

On Apnl 14. 1992. the attorneys for the Petitioner and Respondent filed Stipulations in the Office of 
Administratn e Hearings in the abo\ e-captioned contested case and these Stipulations are set out in full below 

"Now comes the Petitioner and the Respondent and enter into the follow ing Stipulations: 

1. The Respondent holds beer, unfortified wine, fortified wine and mixed be\erage pri\ate club 

permits issued by the North Carolina ABC Commission. 

2 On or about Tuesday. July 16. 1991. Clarence William Richardson was employed as the 

manager of Respondent's club. 

3. Richardson was convicted on August 16. 1989. of felom possession of cocaine under Article 

5. Chapter 90 of the General Statutes. 

4 At about midnight on July 16. 1991. while Richardson was on duty as manager, three (3) 

persons entered the foyer area of Respondent's club. These persons were later identified as Barn- Alan 
Kirkpatnck. Brian Michael Kirkpatrick. and James E. Kirkpatrick. 

5. Respondent's bartender. Richard Albert Pincelli. was working as the doorman at this time. 
Pincelli was behind a ple.xiglass window inside the club 

6 Pincelli obsened the three persons and. based upon his observation, refused to allow them to 
enter because he belie\ ed them to be intoxicated 

7 When Pincelli refused to allow them to enter, one of the three hit the plexiglass window, 
knocking it out of the frame and into Pincelli. One of the three then tried to strike Pincelli. 

8. Pincelli then yelled for "Billy Jack", which is Richardson's nickname, to help him. Pincelli 
also called 911 for police assistance. 

9, Richardson, who was playing a \ ideo game, approached the door between the club area and 
the foyer. He and another person tried to open the door but were unable to because one or more the three men 



*See Petitioner's Prehearing Statement, filed September 24. 1991 Respondent's Preheanng Statement, filed 
October 2, 1991. 



940 7:9 NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



10. Richardson then went to the office and remo\ed a .45 calibre semi-automatic hand gun from 
the desk drawer. 

11. Richardson then returned with the gun to the foyer area. The three Kirkpatricks were then 
located outside the glass door in the parking area of the club. There was no-one in the foyer area except 
Richardson. 

12 Richardson pushed open the door and asked the Kirkpatricks to "get out of here" He was 

lomed by Dann\ Thompson in the foyer. 

13. An altercation ensued wliich resulted in Richardson firing several shots and striking all three 
Kirkpatricks. 

14. Bany Alan Kirkpatrick and Brian Michael Kirkpatrick were pronounced dead at the scene. 

15. James E. Kirkpatrick was also shot but his injunes proved not to be fatal, 

16. Richardson then re-entered the club, placed the gun behind the bar and waited for the police 
to am\e. 

17. Police arrived shortly thereafter and initiated an in\estigation. 

18. Based upon that iinestigation. Richardson was con\ icted in Superior Court of Mecklenburg 
County on Februar\- 28. 1992. of two counts of Second Degree Murder and one count of Assault With a 
Deadly Weapon With the Intent to Kill. 

19. The Respondent acknowledges that Clarence Richardson was hired as a manager of the club 
uid the Respondent was aware of Mr. Richardson's pre\ ious felony con\ iclion. 

20. When Mr. Richardson contacted Walter Da\id Baucom about employment, he was an inmate 
It the Mecklenburg County Satellite Jail. 

21. When Mr. Richardson asked the Respondent if he could be employed, he spoke with Mr. 
Baucom. and Mr. Baucom advised him that he could not be hired as a result of his status as a convicted felon 

22 However based upon assurances from the Mecklenburg County Sheriffs Department that it 

would be pennissible for Richardson to be employed at Leather 'N Lace on a work release program, under the 
control and supervision of the Mecklenburg County Sheriffs Department. Mr. Baucom agreed to hire 
Richardson Thereafter the Mecklenburg County Sheriffs Department approved Richardson's application for 
placement as a work release inmate. 

23. That Mr. Baucom. in reliance upon the representation made to him b\ the Mecklenburg 

County Sheriffs Department, engaged Mr. Richardson as an employee, assuming that he would be working 
under the super\ision and control of the Mecklenburg County Shenffs Department." 



Based upon the Stipulations, and the greater weight of the evidence, the undersigned makes the 
following: 



FINDINGS OF FACT 



The Office of Administrative Hearings has jurisdiction ov er the abo\ e-captioned contested case 



7:9 NORTH CAROLINA REC.ISTER August 3, 1992 941 



CONTESTED CASE DECISIONS 



pursuant to Chapters 18B and 15(iB of the North Carolina General Statutes. 

2. Petitioner issued to Respondent and Respondent holds beer, unfortified \Mne. fortified wine 
and mixed beverage ABC private club permits. 

3. Walter DaMd Baucom, Jr.. is a citizen and resident of Charlotte. Mecklenburg Count)', Nortl 
Carolina, and the pemtittee and pnncipal owner of Daniels In\estment. Inc.. t/a (trading as) Leather 'N Lace 

East, located at 4209 Momoe Road. Charlotte. Mecklenburg Count}". North Carolina. 

4. Other .A.BC permits ha\e been issued to other establishments in Gastoma. Hickon anc 
Charlotte area trading under the name of Leather 'N Lace. Although these establishments are financiall 
connected and owned, only .A.BC permits issued to Daniels Investments. Inc.. t'a Leather 'N Lace - East 
(Monroe Road) is the subject of this contested case. 

5. During the year 1990. Petitioner issued three warnings and one citation to Respondent. Dunng 
the year 1991. no warnings or citations were issued to the Respondent. 

6. That on or about July 16. 1991. Clarence William Richardson was employed as the managei 
of the Respondent. 

7. When Richardson contacted Walter Da\ id Baucom about employment, he was an inmate ai 
the Mecklenburg County satellite jail. 

8. When Mr. Richardson asked Respondent if he could be emplo> ed. he spoke with Mr. Baucom 
and Mr. Baucom ad\ ised him that he could not be hired as a result of his status as a convicted felon. 

9. JJowe\ er. based upon assurances from the Mecklenburg County Shenff s Department that it 
w ould be permissible for Richardson to be employed at Leather 'N Lace on a work release program, under the 
control and supervision of the Mecklenburg County Sheriffs Department. Mr. Baucom agreed to hire 
Richardson. Thereafter, the Mecklenburg County Sheriffs Department appro\ed Richardson's application fo 
the placement as a work release inmate. 

10. At the time that Mr. Richardson was emplo>ed as manager. Respondent. b> and through 
Walter Da\id Baucom. Jr.. was aware that Richardson had been comicted of felony possession of cocaine 
under Article 5. Chapter 90 of the General Statutes. The date of con\iction was .A,ugust 16. 1989. 

11. .A.t about midmght on July 16. 1991. while Richardson was on duty as manager, three persons 
entered the fo\ er area of Respondent's club. These persons were later identified as Bany .A.lan Kirkpatnck 
Bnan Michael Kirkpatnck and James E. Kirkpatnck. 

12. Respondent's bartender. Richard .Albert Pincelli. was working as the doorman at this time 
Pincelli was behind a plexiglass window inside the club. 

13. Pincelli observed the three persons and. based upon his obsenation. refused to allow them to 
enter because he believed them to be intoxicated. 

14 When Pincelli refused to allow them to enter, one of the three hit the plexiglass window, 

knocking it out of the frame and into Pincelli. One of the three then tried to strike Pincelli. 

15. Pincelli then >elled for "Bilh Jack", which is Richardson's nickname, to help him Pincelli 
also called 911 for police assistance. 

16. Richardson, who was pla\ ing a \ ideo game, approached the door between the club area and 
the foyer. He and another person tned to open the door but were unable to because one or more of the three 
men in the fo\ er area were holding it. 



942 7:9 NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



17. Richardson then went to the office and remo\ed a .45 calibre semi-automatic handgun from 
the desk drawer. 

18. Richardson then returned with the gun to the fover area. The three Kirkpatricks were then 
located outside the glass door in the parking area of the club There was no one in the foyer area except 
Richardson. 

19. Richardson pushed open the front door and asked the Kirkpatricks to get out of here. He was 
loined by Danm Thompson in the foyer. 

20. An altercation ensued which resulted in Richardson firing several shots and striking all three 
Kirkpatricks. 

21. Barr\ Alan Kirkpatrick and Brian Michael Kirkpatrick were pronounced dead at the scene. 

22. James E. Kirkpatrick was also shot, but his injuries proved not to be fatal. 

23. Richardson then reentered the club, placed the gun behind the bar and waited for the police 
to arrive. 

24. The police arrived shortly thereafter and initiated an investigation. Richardson was convicted 
in Supenor Court of Mecklenburg Counts on Februarv' 28. 1992. of tvvo counts of Second Degree Murder and 
one count of Assault With a Deadly Weapon With the Intent to Kill. 

25. Based upon the testimony of Agent Sellers, the testimony of Mr David Baucom. Jr. and the 
record of ABC \ iolations for all of the establishments which trade as Leather 'N Lace, the undersigned finds 
that Respondent's establishments, including Leather 'N Lace - East, prior to the incident in question, generally 
licid a favorable reputation among the law enforcement community in Mecklenburg County . 

26. At Respondent's establishment there are six permanent salaried employees and 12 self 
employed contractors. 

27. Respondent prohibits the possession or use of firearms bv its employees. 



Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. That the Office of Administrative Hearings has personal and subject matter jurisdiction over 
this contested case pursuant to Chapters 18B and 150B of the North Carolina General Statutes. 

2. G.S. 18B-003(c)(l) prohibits a permittee (ABC) to knowingly employ a person convicted of 
a felony within three years of the date of the employment. Bv Stipulation, the parties have agreed that 
Respondent's employee. Clarence Richardson, had been convicted of felony possession of cocaine within three 
vears of the date of his employment. 

3. Richardson was employed as "manager" of the Respondent's establishment. Notwithstanding 
the assurances of the Mecklenburg County Shenffs Department to the contraiy. the statutoiy prohibition is 
quite clear, and the undersigned concludes that this provision was violated by the Respondent. As found in 
the Stipulations and Findings of Fact, this employment was urged upon Respondent bv the Mecklenburg 
County Shenffs Department. The assurances of the Mecklenburg County Sheriffs Department, through its 
agents, did not legalize an otherwise unlawful statutory prohibition nor did the assurances constitute an estoppel 
as to the Petitioner. An estoppel, if any. w ould only run to the persons making a representation. Therefore. 
the Petitioner is in no way estopped from asserting these v iolations Howev er. the violation found under the 



7:9 NORTH CAROLINA REGISTER August J, 1992 943 



coy TESTED CASE DECISIOSS 



facts as stipulated indicates a lack, to some degree, of intent. The lack of intent is not a defense in a contested 



case to an alleged \iolation. nor %%as such a defense plead or argued, but it can be a mitigating factor 
detennining the penalty. 



in 



4. The provisions of G.S. 18B-1005(a)(2) prohibit any fighting or other disorderly conduct on 
Respondent's premises. G.S. 18B-1005(?) also prohibits a permittee from engaging in "any other unlawful 
acts." 

5. Without question. Respondent's emplo\ee engaged in disorderly conduct and fighting b\ 
discharging the .45 caliber semi-automatic handgun at those who were ejected from the Respondent's premises 
Richardson was con\icted in Supenor Court of Mecklenburg Count> on Februan 28. 1992. of two counts of 
Second Degree Murder and one count of -Assault With a Deadh Weapon With the Intent to Kill. 

6. Not only do these actions constitute "disorderly conduct" and "fighting" within the 
contemplation of G.S. 18B-1005(2) and 4 NC.A.C 25 .0210. they also constitute a violation of "any othe 
unlawful acts." Con\ iclions of two separate counts of Second Degree Murder and one count of Assault With 
a Deadly Weapon With the Intent to Kill constitute engaging in "unlawful actiMD. ." 

7. .Mr Richardson, as manager, is acting as an emplo\ ee of the Respondent. A manager is a t>pe 
of emplo> ee that is \ ested with a wide range of authont\ to act on behalf of the Respondent.* Respondent 
must assume responsibilit>" under the ABC laws for the conduct of its manager especially in exercising a 
managenal function of ejecting disorderly patrons from the Respondent's premises. 

8. The testimony of .Mr. Baucom supported b\ his affida\ it (Respondent's E.\hibit =3) indicates 
that Mr Richardson lacked authont} to possess a firearm and certainly lacked the authont> to act in the 
manner in which he did. Howe\'er. clearl\. Mr. Richardson was acting in pursuit of a legitimate goal of 
Respondent in attempting to eject the patrons. The unreasonable force utilized by Respondent's emplo\ee in 
discharging a firearm which resulted in the death of two of the three persons was most unfortunate. 
Respondent must assume the consequences of the acts of its employee by placing him in positions of a 
"manager" and giMUg him the authont\ to control Respondent's premises. These acts of Respondent's 
emplo\ ee will be imputed to the Respondent, as employer, under these circumstances. 

9. Mr. Baucom \erbalh testified that the Respondent's club prohibits firearms.** However, the 
firearm that w as retne\'ed b} Richardson came from his desk drawer. Lack of actual knowledge on the part 
of the Respondent as to the existence of this weapon on Respondent's premises and e\en if contran to its 
express instructions does not relie\ e Respondent of its imputed know ledge of the existence of the weapon on 
the premises nor the consequences resulting from its use. Do\e \-. North Carolina Board of .Alcoholic Control . 
37 N.C. App. 605. 608. 246 S.E. 2d. 584 (1978). proMdes ample authorit) for imputing knowledge of an 
employee's acts to a permittee who may lack actual knowledge. "In a number of cases the courts ha\e upheld 
re\ocation. cancellation or suspension of liquor licenses because of improper, or wrongful or unlawful acts of 
the licensees' empIo\ ces or agents, although such acts are committed against the instructions of the licensee 



or without his know ledge or consent . This is sound law. which we adopt (citations omitted). ..'In our opinion 
there is not room for debate on the question whether for the purpose of suspension or cancellation of licenses, 
the holder of a retail liquor license should be held responsible for the acts and conduct of his empIo> ees and 
the operation of the business. Sound public policy requires that he is responsible. To hold otherwise would 
lead to a complete breakdown of the whole system and theon of super, ision contemplated by the .A.ct. and 
would permit a licensee to escape liabilm for suspension or re\ocation of his license mereh on the ground 



* The American Heritage Dictionary. Second College Edition , defines "manage": "1. To direct or control the 
use of 2. To exert control o\er. 3. To make submissi\e to one's authorit} . discipline or persuasion." 

**No mention is made in Respondent's Exhibit ==2 as to the prohibition of handguns as to the entertainers. 
Howe\er, the booklet indicates that management may randomh search the lockers assigned to entertainers for 
illegal drugs. 



944 7.9 SURTH CAROLISA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



le had no knowledge of and had not authorized or appro\ed a \iolation b\ the employee. In an effort to get 
this very thing the Legislature has seen fit to classify those persons to whom licenses may be granted and 
\ho may be employed by licensees. In the nature of things it must be held that the licensee is responsible at 
ill times for the acts and conduct of his emplo> ee in the operation of the business.'" (emphasis added) 

10. Nothing found or concluded herein indicates direct culpability by Respondent's owners for the 

ictions of its employee e.xccpt that the ABC statutes and regulations, as constmed. requires them to be 
icariously accountable. 

Based upon the foregoing Stipulations. Findings of Fact and Conclusions of Law\ the Chief 
Administrative Law Judge makes the following: 

RECOMMENDED DECISION 

The Chief Administrati\e Law Judge recommends to the Petitioner. ABC Commission, that all of 
Respondent's ABC permits be suspended for a pcnod of three years but that the last si.x months of the three 
,car suspension be stayed upon the condition that the Respondent not \iolate any of the ABC laws or niles 
lased upon the mitigating factor as found in the Conclusions of Law #."!. 

ORDER 

It is hereb\ ordered that the agenc\ sen e a copy of the final decision on the Office of Administrative 
hearings. P.O. Drawer 27447. Raleigh. N.C. 2761 1-7447. in accordance with North Carolina General Statutes 
1.^0B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to gi\e each parly an 
Dpportunit> to file exceptions to this recommended decision and to present w ntten arguments to those in the 
igency who will make the final decision G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to ser\e a copy of the final decision on all panics and to 
'umish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agencN that will make the final decision in this contested case is the North Carolina Alcoholic 
Beverage Control Commission. 



This the 15lh dav of Julv. 1992. 



Julian Mann, III 

Chief Administrative Law Judge 



7:9 NORTH CAROLINA RECilSTER August 3, 1992 ^45 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNT\ OF NEW HANOVER 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

91 DHR 0964, 0966 



GROTGEN NLHSLNG HOME, 
BRITTHAVEN, INC., 

Petitioners, 



LNC. 



CERTIFICATE OF NEED SECTION, 
DIMSION OF FACILITY SERVICES, 
NORTH CAROLLNA DEPARTMENT OF 
HUMAN RESOLTRCES, 

Respondent. 




The abo\ e-capiioned. consolidated matter was heard before Delorcs O. Xesnow. duh appointee 
Administrative Law Judge, on JuK \. 1992. in Raleigh. North Carolina. 



For Petitioner Grotgen Nursing Home. Inc. 



For Petitioner Brittha\en. Inc.: 



For Respondent: 



APPEARANCES 

Mar\- Beth Johnston. Poyner and Spruill 
Post Office Box in(l96 
Raleigh. North Carolina 27605 

Todd Hemphill. Bode. Call and Green 
Post Office Box 6338 
Raleigh. North Carolina 27628 

Meg Scott Phipps. .Assistant .A.ttome\ General 
North Carolina Department of Justice 
Post Office Box 629 
Raleieh. North Carolina 27602 



STATUTES AND RULES IN ISSUE 

N.C. Gen. Stat. § 13 IE. Article 9 
N.C- .A.dmin Code. Title lo. Subchapter 3R 

ISSUES 

Did Respondent exceed its authorit} or junsdiction. act arbitrarily and capriciously, act erroneousl} 
fail to use proper procedure, or fail to act as required b> law or rule in determining that the certificate of need 
as to Grotgen Nursing Home. Inc should be withdraw n for its failure to make good faith efforts to meet the 
construction timetable for the expansion project'^ 

Did Respondent exceed its authonty or junsdiction. act arbitranly or capricioush . act erroneoush. fail 
to use proper procedure, or fail to act as required b\ law or rule in determining that the certificate of need as 
to Brittha\en. Inc. should be withdrawn for its failure to make good faith efforts to meet the construction 
timetable for the expansion project"^ 

Based upon careful consideration of the testimony and exidence presented at the hearing, the 
documents and exhibits received into CMdence. and the entire record in this proceeding, the undersigned makes 
the foUowina: 



946 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



FINDINGS OF FACT 



1. The Petitioner, Grotgen Nursing Home. Inc. ("Grotgen") is a North Carolina corporation with 
ts principal place of business in New Hanover County, North Carolina, and is the owner and lessor of a fifty 
3cd nursing home in Wilmington, North Carolina. 

2. The Petitioner, Britthaven, Inc. ("Britthaven"). is a North Carolina corporation which operates 
chain of nursing homes in North Carolina and currently leases and operates the fifty bed nursing home owned 

bv Grotgen under the name "Britthaven of Wilmington." 

3. The Respondent. Certificate of Need Section, Division of Facility^ services. North Carolina 
Department of Human Resources ("CON Section"), is an agency of the State of North Carolina authorized by 
N.C. Gen. Stat. § I31E-177 to grant, deny or withdraw certificates of need. 

4. On or about March 16. 1990. Grotgen timely filed a joint application with Britthaven for 
Project l.D. No. 0-3953-90 with the CON Section for the expansion of its nursing home, including 20 skilled 
care. 40 intermediate care and 20 home for the aged beds (the "Project"). 

5. The application for Project l.D. No. 0-3953-90 was subsequently determined complete for 
review and included in the ne.xt scheduled review cycle beginning on April 1, 1990. 

6. By letter dated on or about August 28, 1990. the CON Section notified Grotgen and Britthaven 
that their joint CON application for Project ID. No. 0-3953-90 had been approved. Thus, Grotgen and 
Britthaven became joint holders of the certificate of need. 

7. No petition for a contested case hearing was filed by any competing applicant and the 
certificate of need for Project ID. No. 0-3953-90 was forwarded to Grotgen and Britthaven on October 2. 1990. 

8. The certificate of need issued to Grotgen and Britthaven contained the following timetable: 

Obtaining funds necessan, to undertake Project 12/30/90 

Completion of preliminary drawings 09/15/90 

Completion of final drawings 10/01/90 

Approval of final drawings 1 1/01/90 

25% Completion of Construction 01/01/91 

50% Completion of Construction 03/15/91 

75% Completion of Construction 04/15/91 

Completion of Construction 06/30/91 

Occupancy /Offering of Services 07/30/91 

Licensure of facility 07/30/91 

9. By letter dated July 31. 1991. the CON Section notified Grotgen and Britthaven that it was 
considering the initiation of w ithdrawal proceedings because the Project was behind schedule and requested 
comprehensive reports to document the progress made tow ard de\ elopmcnt of the Project. 

10. A comprehensive progress report was submitted by Britthaven on August 9. 1991 and by 
Grotgen on August 14. 1991. 

1 1. Thereafter, on September 13, 1991, the CON Section notified Grotgen and Britthaven by letter 
that the certificate of need for the Project would be withdrawn effective October 13, 1991 for each holders' 
alleged failure to make a good faith effort to meet this timetable. 

12. On October 11. 1991. Grotgen file a petition for a contested case hearing to protect its rights 
under the certificate of need and to prevent withdrawal. Also, on October 11, 1991. Britthaven filed a separate 
petition for a contested case hearing to protect its rights under the certificate of need and to prevent withdrawal. 



7:9 NORTH CAROLINA REGISTER August 3, 1992 947 



CONTESTED CASE DECISIONS 



These contested cases were consolidated for hearing by Order dated February 21, 1992. 

13. Efforts made by Grotgen to meet the Project timetable and to develop the Project include th 

following; 

A. Immediately following the filing of the certificate of need application. Grotgen signe 
an agreement with Green Engineering for Green to represent Grotgen and Bntthaven in a rezoning o 
the back portion of the propert\ from R-15 to Office & Institutional ("O&I") required in order t 
develop the Project Rezoning was requested and thereafter accomplished in the summer of 1990, prio 
to an approval of the application, in order to be in a position to move ahead with the Project a 
expeditiously as possible upon approval. 

B. Also, in the summer of 1990, Grotgen attempted to establish a banking relationshi 
with sc\ eral local banks, including First Hanover, Wachovia and First Union, in order to have financin 
available for the Project upon its approval. 

C. In order to obtain financing. Grotgen \\ as required by the lender to have the propert 
appraised and an environmental impact study performed. In July of 1990. Grotgen obtained an apprais 
from the firm of Joseph Robb & Associates, incurring a cost of approximately $2,000.00. In Lat 
August of 1990, Westinghouse prepared an environmental impact study of the property for Grotge 
In connection with this study. Grotgen expended a significant amount of time by having to be presen 
for soil testing and incurred expenses of approximately $1,800.00 These efforts were taken prior t 
the approv al of the certificate of need application in order to be in a position to develop the Project a 
quickly as possible upon approval. 

D. In its discussion with the banks for financing and in obtaining an appraisal of th( 
property, Grotgen became aware that a certain level of rent would be required in order to secun 
financing for the Project. Grotgen and Bntthaven had prev iously agreed prior to filing the certificat 
of need application that a rental rate on the Project, a nev\ lease term for the expanded facilitv, and ; 
new rental rate for the lease of the existing 50 beds for any extension of the current lease term wouh 
hav e to be negotiated upon approval of the Project. 

E. Following the approval of the Project and the issuance of the certificate of need, i 
was detennined that Green Engineering, the engineers for the Project, had incorrectly concluded tha 
the Project could be built on the back portion of the propertv and that instead the Project would hav( 
be placed in the front portion of the property . Such placement would require another zoning changf 
from B-2 to O&I v\hich would negatively affect the value of the property by approximately $100,00( 
and would also detract from the aesthetic beauty of the property due to the required removal of 
substantial number of trees. 

F Thereafter, in the fall of 1990, Grotgen and Bntthaven met on several occasions tc 

arrive at mutually agreeable terms for an extension of the lease tenn and the rent for the facility upor 
expansion. Britthav en's initial offer concerning the rent on the Project was to increase the rent to cove 
only principal and interest on the amount borrowed to finance the addition. Grotgen's accountan 
determined that under this proposal Grotgen would incur a loss of approximatelv $256,048 over the life 
of the current 15 vear lease. Britthaven's only other proposal concerning the rent involved the paymeni 
of a flat rate of $7.00 per bed per day for the life of a 15 year lease with no adjustments for inflation 
The most recent av ailable information at that time regarding average nursing home rental rates in Nortl 
Carolina, as determined by the Division of Medical A.^ 'stance. Department of Human Resources 
indicated that the average rate for 1988 was $6 44 Siik - this proposal offered a rental rate below 
estimated market rates in 1990 and significantly below market by 200,3, Grotgen detennined that thi 
proposal was not financially feasible and, if agreed to, would further negativelv impact the value of tk 
property. 

G. Thereafter, Britthaven and Grotgen determined that a possible resolution of theii 

differences which would permit further development of the Project was to negotiate a sale of the entire 



948 7:9 NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



facility to Britthaven. Grotgen obtained a consultant to help it evaluate the worth of the nursing home 
and made an offer to sell the facility to Britthaven. 

H. Through the summer of 1991, Grotgen engaged in serious and good faith negotiations 

with Britthaven for the sale of the facilit}', but the parties were unable to reach a mutually agreeable 
purchase price. The suggestion of a tax-free exchange was explored as another means to negotiate the 
sale of the facility, but such an approach was determined unworkable by Grotgen's accountant. 

I. Despite the CON Section's notice of intent to w ithdraw the certificate of need in July 

of 1991 and its subsequent decision to withdraw the certificate from each holder in September of 1991. 
Britthaven and Grotgen have continued to negotiate possible solutions to their lease differences in order 
to permit further development of the Project. 

J. When, as a part of these continued negotiations. Britthaven expressed a willingness 

to have its lease interest bought out and for Grotgen to obtain a new operator as a way to resoK e this 
matter. Grotgen immediately undertook efforts which would enable it to move forward w ith the Project 
as soon as possible, such as requesting a rezoning of the front portion of the property, obtaining 
approval to remove trees on the front portion of the property in accordance with local ordinances, 
retaining an architect who has prepared preliminary drawings for the Project, conferring with several 
general contractors regarding construction timetables and costs, attending numerous meetings with 
banking officials to secure financing for the Project, and holding numerous discussions with interested 
nursing home operators for the lease or purchase of the facility . 

14. The Respondent, by its attorney, stipulated that Grotgen has made good faith efforts to meet 
the timetable and to develop the Project. 

15. Britthaven offered no e\ idence of any good faith efforts that it has made to meet the timetable 
and to develop the Project. 

16. Grotgen and Britthaven appear unable jointly to develop the Project. 

17. The CON Section, in determining that good faith efforts had not been made and were not 
being made towards the development of this Project, did not consider the efforts as described in paragraph 13 
above. 

Based on the foregoing Findings of Fact, the undersigned makes the follow ing: 

CONCLUSIONS OF LAW 

1. There is no North Carolina case which construes the "good faith" requirement in N.C. Gen. 
Stat. § 131E-189 or 10 N.C. Admin. Code 3R .0317. Black's Law Dictionan includes several definitions of 

good faith," all of which emphasize honest>' of purpose or intent, lack of intent to defraud or take advantage, 
and faithfulness to obligations. Black's Law Dictionarv- 693 (6th ed. 1990). 

North Carolina statutes and case law. in analogous contexts, have defined the term "good faith" as 
including a duty to make reasonable efforts in fulfillment of one's obligations and honesty in fact in the 
transaction concerned. See. Weverhaeuser Companv v, Godwin Bldg Supplv . 40 N.C. App. 743. 253 S.E.2d 
625 (1979); see also, N.C. Gen. Stat. § 25-1-201. 

2. In light of these definitions and standards and the evidence introduced at the hearing, the 
Respondent has not met its burden of proof that Grotgen has failed to make good faith efforts to meet the 
timetable for the Project or to develop the Project; therefore, the Respondent's decision to withdraw the 
certificate of need as to Grotgen was erroneous and not in accordance w ith law or rule, specifically N.C. Gen 
Stat. § 131E-189. However, the Respondent has met its burden of proof that Britthaven has failed to make 
good faith efforts to meet the timetable for the Project or to develop the Project; the Respondent's decision to 
withdraw the certificate of need as to Britthaven was proper. 



7:9 NORTH CAROLINA REGISTER August 3, 1992 949 



CONTESTED CASE DECISIONS 



RECOMMENDATION 

That Respondent's decision to \\ ithdraw the certificate of need be re\ersed as to Grotgen and affirmet 
as to Brittha\en. 

That. b\ agreement of the Respondent and Grotgen. the Project shall be de\eloped according to th( 
following revised timetable and conditions: 

Obtain funds necessan to undertake Project 12/01/92 

Completion of preliminar. drawings 09/01/92 

Completion of final drawings and specifications 11/01/92 

Appro\al of final draw ings and specifications 

by the Construction Section of DPS 01/01/93 

Appro\al of Site b> Construction Section of DPS 01/15/93 

25% Completion of Construction 04/15/93 

50% Completion of Construction 06/15/93 

75% Completion of Construction 07/3 1/93 

Completion of Construction 09/15/93 

Occupanc\/Offenng of Ser\ices 10/15/93 

(1) In the event an agreement between Grotgen and any new operator to whom Grotgen intend; 
to lease or sell the facility is not executed within 120 days after a final decision is entered in this case, thei 
Grotgen agrees to \ oluntarily surrender the certificate of need to de\elop the Project to the Respondent. 

(2) In the e\ent that construction is not commenced by Febnian 1. 1993. Grotgen agrees tc 
voluntanly surrender the certificate of need to the Respondent. 

ORDER 

It is hereb> ordered that the agency serve a copy of the final decision on the Office of Administrativ 
Heanngs. Post Office Drawer 27447. Raleigh. N.C. 27611-7447. in accordance with N.C. Gen. Stat. § 150B- 
36(t). 

NOTICE 

The agency making the final decision in this contested case is required to gi\e each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a). 

The agency is required by N. C. Gen. Stat. § 150B-36(T3) to serve a copy of the final decision on al^ 
parties and to furnish a copy of the parties' attome> of record and to the Office of .AdministratiN e Heanngs 



The agenc> that will make the final decision in this contested case is the North Carolina Departmen 
of Human Resources. 

This the 6th dav of Julv. 1992. 



Delores O, Nesnow 
Adniimstrati\ e Law Judge 



950 7:9 NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF DLTRHAM 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
91 EHR 0818 



ACT-UP TRIANGLE (AIDS Coalition 
to Unleash Power Triangle, 
STEVEN HARRIS, and JOHN DOE, 

Petitioners, 



COMMISSION FOR HEALTH SERVICES 

of the State of North Carolina, 
RON LEVINE, as Assistant Secretary 
of Health and State Health Director 
for the Department of Environment, 
Health, and Natural Resources of 
the State of North Carolina, 
WILLIAM COBEY, as Secretary of the 
Department of Environment, Health, 
and Natural Resources of the State 
of North Carolina, DR. REBECCA 
MERIWETHER, as Chief, Communicable 
Disease Control Section of the 
North Carolina Department of 
Environment, Health, and Natural 
Resources, WAYNE BOBBITT, JR., as 
Chief of the HIV/STD Control Branch 
of the North Carolina Department of 
Environment, Health, and Natural 
Resources, 

Respondents. 



RECOMMENDED DECISION 



This is contested case \\as commenced b> the filing of a Petition on August 28, 1991. The Petitioners 
challenge the constitutionality of 15A NCAC 19A .0201(d)(10) which instructed the State Health Director to 
reduce the number of sites in this state that would continue to offer anonymous testing for the HIV antibody. 
The State Health Director was charged w ith selecting no fewer than si.xteen sites which would continue to offer 
anonymous testing until September 1. 1994. at which time all anonymous testing for the HIV antibody would 
be eliminated in North Carolina. 

On October 10. 1991. the Petitioners filed a Motion for a Preliminarv' Injunction, asking for an Order 
reactivating anonymous HIV testing in health departments not designated to be regional anonymous testing 
sites. On October 23. 1991. the Respondents filed a Motion to Dismiss. On November 15. 1991. the 
undersigned Administrati\e Law Judge denied both motions. 

On Januarv 23. 1992. the undersigned Administrative Law Judge granted partial summar>- judgment 
to the Respondents. A hearing on all remaining issues was conducted in Durham. North Carolina on Februar\ 
12-14. 1992 The record was held open until April 15. 1992 to allow the parties to submit written arguments 
and proposed findings of fact and conclusions of law. 



For Petitioners: 



For Respondents; 



APPEARANCES 

GLENN. MILLS AND FISHER. Attorneys at 

Law. Durham. North Carolina; Stewart W Fisher appearing. 

Mabel Y. Bullock. Assistant Attorney 



7:9 NORTH CAROLINA REGISTER August J, 1992 



951 



CONTESTED CASE DECISIONS 



General and Gayl M. Manthei. Special Deputy Attorney General, North 
Carolina Department of Justice. Raleigh. North Carolina. 



ISSUE 

Whether the Respondents (1) substantially prejudiced the Petitioners' rights and exceeded their 
authority or jurisdiction. (2) acted erroneoush . (3) failed to use proper procedure, (4) acted arbitrarily or 
capriciously, or (5) failed to act as required by law or rule when selecting the sites that would continue to offer 
anonymous HIV antibody testing in North Carolina. 



FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 

1. Petirioner .A.CT-UP TRIANGLE is the North Carolina chapter of the Aids Coalition to Unleash Power 
a non-\iolent. unincorporated political action group dedicated to the elimination of acquired 
immunodeficiency syndrome. 

2. Petitioner Steven Harris is a citizen and resident of Durham County. North Carolina and is one of the 
founders of the Tnangle Chapter of ACT-UP. 

3. .A.CT-UP TRI.ANGLE includes among its membership residents of several different North Carolina 
counties, including residents of Durham. Forsyth, and Yancey counties. 

4. John Doe is a citizen and resident of Durham County. North Carolina, who has in the past been 
anon\ moush tested for the presence of the human immunodeficiency.' \irus (HIV) at the Durham 
County Health Department. John Doe is at hrgh risk for exposure to HIV. 

5. The human immunodeficiency Mrus is the \irus which causes acquired immune deficienc\ s> ndrome 
(AIDS). 

6. The Commission for Health Sen, ices ("Commission") is the go\emmental bod> which is charged with 
adopting rules for the protection of the public health and for the detection, control, and pre\ention of 
communicable diseases. 

7. Ronald H. Le\ine. M.D.. M.P.H. is the .Assistant Secretary of Health of the Department of 
Environment. Health, and Natural Resources and the State Health Director. He has held those 
positions for ten years. He has a M.D. degree from the State Unnersity of New York and a Master's 
degree in Public Health from the Uni\ersity of North Carolina. He is board qualified in pediatrics. 
pre\ enti\ e medicine, and public health. In his position as State Health Director, he is responsible for 
the management of the \arious public health programs for the State of North Carolina. Among these 
programs are maternal and child health, health promotion and disease prevention, environmental health. 
and commumcable disease control. Based on his education, background, and experience. Dr Levine 
qualifies as an expert in the areas of public health and communicable disease control. 

8. Rebecca A. Menwether. M.D.. M.P.H. is the Chief of the Communicable Disease Control Section 
of the North Carolina Department of EnMronment, Health, and Natural Resources ("DEHNR"). and 
she has held this position since September. 1985 Dr Meriwether recei\ed an M.D. degree in 1979 
from the Medical College of Georgia. She is board certified in family practice, and she holds a 
Masters in Public Health in Epidemiology from the Uni\ ersity of North Carolina. Based on her 
education, background, and experience. Dr, Menwether qualifies as an expert in areas of public health 
and communicable disease control. 



952 7:9 NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



William Cobey is the Secretary of the Department of Environment, Health, and Natural Resources of 
the State of North Carolina. 

Wayne Bobbitt, Jr. is the Chief of the HIV/STD Control Branch of the Department of Environment, 
Health, and Natural Resources for the State of North Carolina. 

The test for HIV infection is a blood test which detects the presence of antibodies to the HIV virus. 

Since 1985. the State has controlled HIV testing. From the onset, testing was available in all 100 
North Carolina counties on both an "anonymous" and "confidential" basis. 

In an anonymous test, persons being tested are identified only by race. sex. year of birth, and county 
of residence. A person who requests an anonymous test is not required to provide a name, address, 
or phone number. 

When a person is tested confidentially, the testing authorities obtain the name, address, and telephone 
number of the person being tested. This information is attached to the blood sample and is placed 
upon a "Communicable Disease Report Card" as set forth in 15A NCAC 19A .0102(a)(2). 

There is no difference in cost to the State regardless of whether an individual is tested anonymously 
or confidentially. 

16. The Respondent Commission for Health Services met on February 12, 1991 to consider the DEHNR's 
proposal for decreasing the availability of anonymous testing. 

At this meeting, the Commission considered the relative advantages and disadvantages of anonymous 
and confidential testing for the HIV antibody. It heard a summary of comments from si.x public 
hearings that had been held throughout the state and it listened to additional comments from the public 
at the Commission meeting. 

Previously, the Respondents had considered anonymous HIV testing to be a critical component of the 
efforts to get essential risk reduction information to those at highest risk for HIV infection because the 
availabilit> of anonymous testing fosters trust in public health efforts among those at risk for HIV. 
Tmst in the public health efforts increases the willingness of those at highest risk for HIV infection 
to seek public health assistance and to adhere to public health recommendations regarding transmission 
of HIV. 

Now, the Respondents' purpose for offering only regional anonymous testing sites is to provide a 
location where individuals, if they exist, who will not submit to confidential testing can receive an 
anonymous test. 

The Respondents contend that the elimination of anonymous testing will allow state authorities to do 
better partner notification because confidential testing significantly increases the abilit}' of health 
professionals to identify, contact, and counsel partners of infected individuals. Such partner 
notification and counseling is a means to reach persons at extremely high risk for HIV infection— sex 
and needle partners of individuals with positive tests. Notification of these high risk individuals 
provides them an opportunity to change their behavior in order to reduce the chances that they may 
become infected or that they may unwittingly infect others, to be tested, and, if infected, to take 
advantage of available treatment. 

Effective partner notification. howe\er. depends upon the \oluntan, cooperation of the infected person. 
The State cannot do any partner notification unless an infected person comes in to be tested in the first 
place. 

Up through 1990. the DEHNR's Communicable Disease Control Section did not have sufficient staff 



7:9 NORTH CAROLINA REGISTER August 3, 1992 953 



CONTESTED CASE DECISIONS 



to meet its objective regarding post testing counseling for individuals who tested HIV positive or tc 
measure the effectiveness of its partner notification program. 

23. The Respondents have not conducted any studies in North Carolina to evaluate the effectiveness o 
partner notification facilitating behavior change and increasing knowledge of high risk behavior: 
among patients and partners counseled by public health HIV counselors. 

24. Many individuals refuse to provide their names at the time that they seek HIV tests because of thei 
fear of discrimination in jobs, housing, and insurance. 

25. Despite the passage of federal and state anti- discrimination laws, many individuals continue to hav 
these fears. 

26. At Its Februarv 12, 1991 meeting, the Commission adopted a rule, now found at 15 A NCAC 19A 
,0201(d)(10). recommended by Respondents Drs Menwether and Le\ine which instructed the Stat' 
Health Director to reduce the number of anon\ mous testing sites in the state The State Healtl 
Director was charged with selecting no fewer than sixteen sites which would continue to offe 
anonymous testing until September 1. 1994. at which time anonymous testing would be eliminated 

27. The Commission further directed the State Health Director to report back to the Commission even 
six months on the impact of the reduction of anonymous testing and to make a report anc 
recommendations to the Commission at the February. 1993 meeting. 

28. Although the minutes from the Februarv' 12. 1991 meeting reflect that Commission members raised 
questions about how the staff determined w hat w ould be an appropnate number of sites, accessibiht)' 
and the impact of reducing the number of anonymous test sites, there was no evidence offered to 
e.xplain how the Commission determined that it would be appropnate for there to be no fewer than 
sixteen sites that would continue to offer anonymous HIV antibody testing, 

29. As State Health Director. Dr. Levine was the individual who was charged by the Commission with 
selecting the sites which would retain anonymous testing. 

30. Dr. Levine invited his staff in the Communicable Disease Control Section to develop recommendations 
for his consideration Dr. Meriwether was primanh responsible for development of those 
recommendations. 

31. Dr. Meriwether's goal in selecting sites to recommend was to encourage confidential testing of persons 
who would accept confidential testing but to also minimize avoidance of testing by people w ith a verv 
strong preference for anonymous testing. She spoke with vanous members of her staff about how to 
accomplish this goal. 

32. In Februarv'. 1991. David Jollv was the Prevention Program Manager for the Communicable Disease 
Section of the Division of Epidemiology within DEHNR. 

33. It was part of Mr. Jolly's job to make recommendations with respect to the control of HIV infection 
within the State of North Carolina. 

34. On Februarv 28. 1991. Mr. Jolly sent a memorandum to Respondents Bobbit. Meriwether, and Levine 
in which he recommended that at least 23 local health departments be designated as anonymous testing 
sites. 

35. The sites recommended by Mr. Jolly included 14 of the 15 sites that accounted for 70% of all 
anonv mous tests conducted in North Carolina dunng the penod from Januarv, 1990 to June. 1990 
(The fifteenth site. Orange County . was omitted from the list because of its proximity to two of the 
other 14 sites. Durham and Wake counties). Nine other sites were included in the recommendation 



954 7:9 NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



to provide residents in more rural parts of the state with reasonable access to anonymous testing 

services. 

The twenty-three sites recommended by Mr. Jolly were: Durham, Mecklenburg, Wake, New Hano\er. 
Buncombe, Guilford, Forsyth, Columbus, Rowan. Wayne, Catawba, Cumberland. Onslow, Pitt, 
Jackson, Watauga, Cleveland, Anson, Moore, Nash/Edgecombe, Halifa.x, Pasquotank, and Washington. 

In detennining which counties to recommend as sites for continued anonymous HIV testing. Dr. 
Meriwether utilized the follow ing process: 

a. Locate the sites that had accounted for, in the aggregate, fort> to sixty percent of the 
anonymous testing conducted in the pre\ious year; 

b. Locate the counties that had received Twelve Thousand Five Hundred Dollars ($12,500) or 
more in Block Grant money for HIV purposes and could, therefore, serve some residents from 
outside of the count} ; 

c. Identify' the ten (10) or twelve (12) counties that had done a large portion of the anonymous 
testing during the previous > ear and select appro.ximately half, making sure that none of the 
counties selected were contiguous; 

d. Distribute the sites across the State; and 

e. Make certain that no fewer than sixteen (16) sites were identified. 

Dr. Levine met w ith Dr. Menwether in order to make a decision regarding w hich counties would retain 
anonymous HIV testing. 

Dr. Meriwether submitted four maps to Dr. Le\ ine and recommended the one which she believed 
pro\ ided the best geographic distribution of anonymous testing sites. 

Dr. Levine re\iewed all four maps and selected the map preferred by Dr. Meriwether. 

Dr. Le\ine made four changes to the preferred map in order to attain what he felt was the most 
appropnate geographical balance for the State. 

The preferred map contained eighteen sites that were identified as potential sites where both 
anonymous and confidential testing would be retained. Dr. Levine changed the proposal of retaining 
anonymous testing in Henderson Count}' to Buncombe County, a neighboring county in western North 
Carolina which was a much larger count}' with what Dr. Levine felt were significantly greater 
resources and was somewhat more centrally located in western North Carolina. Dr. Le\ ine changed 
the proposed retention of anonymous testing in Bertie Count} to Halifax Count}, a larger count} with 
a larger health department and w hich he felt was more accessible in terms of highways and was more 
appropriatel}' geographically placed. Dr. Le\'ine had the same rationale for changing the proposal of 
Onslow Count} to Carteret Count} . Finally, Dr. Levine deleted Columbus County because of its 
pro.ximit}' to New Hanover Count} . 

The changes Dr. Le\ine made to the preferred map did not alter the fact that the seventeen sites 
selected to be anonymous testing sites had, in aggregate, conducted between fort} to sixt} percent of 
the anon} mous testing during the previous year. 

The seventeen sites chosen b} Dr Lev ine were: Macon, Buncombe, Watauga, Catawba, Mecklenburg, 
Suny. Guilford. Orange, Wake. Cumberland. Wayne, Halifax. Pitt, Pasquatank, Dare, Carteret, and 
New Hanover. These sites had performed approximately 54 percent of the anonymous testing during 
the previous year. 



7:9 NORTH CAROLINA REGISTER Augusts, 1992 955 



CONTESTED CASE DECISIONS 



45. Dr. Levine took into consideration the ability of the proposed anonymous testing sites to absort) 
additional workload should individuals from neighboring areas elect to utilize those sites. 

46. Dr. Levine considered whether the proposed sites would yield a significant shift or reduction in the 
a\ ailabilit> and accessibilm- of anon\ mous testing. There was no testimony about how Dr. Levine 
determined that the sites selected would in fact produce the shift or reduction in accessibility he sought 
to achie\e. 

47. Dr Levine did not consider the individual testing rates of any of the counties, but he based his 
selection on the fact that the counties selected represented a state-wide aggregate of forty to sixt\' 
percent 

48. Dr Le\ine requested that Dr. Meriwether call each of the se\ enteen county health departments he had 
selected to determine if those health departments had any objection to the retention of anonymous 
testing, and Dr Meriwether reported back to him that none of the health departments selected had any 
objections to their selection. 

49. Dr. Levine made his final decision and made the announcement of the site selection in a memorandum 
to local health directors pnor to the August 1, 1991 deadline. 

50. The site selection was not done on a random basis. 

51. The site selection was not based upon demographic data with respect to high risk groups. 

52. The site selection was not based upon a proposed scientific study of the effects of reducing the 
a\ailabilit> of anonymous HIV antibody testing because the decision was made before any scientific 
study was designed. 

53. In the past. Durham Count> . North Carolina has had the highest rate of HIV infection per capita of 
any count}' in North Carolina. 

54. Durham Count\ has a particularly high concentration of high nsk groups, including IV drug users and 
gay men 

55. Durham County has had the highest rate of utilization of anonymous testing of any count> in North 
Carolina. 

56. Health care professionals who pro\ide treatment to HIV infected clients belie\e that the elimination 
of anonymous testing in Durham County would lead to the spread of the HIV infection within the 
count>'. 

57. There are experts in the fields of infectious disease and the treatment of HIV infection and AIDS who 
belie\e that there is no public health rationale for decreasing access to anonymous HIV antibody 
testing and that doing so w ill result in an increase rather than decrease in the spread of the disease in 
North Carolina. 

58. Forsyth Count> and Durham Count>- both received a minimum of block grant funding from the State 

59. Forsyth Count> and Durham County were within a statistical sample of counties pro\ iding fort>' to 
sixt> percent of the anonymous testing in North Carolina. 

60. Dr. Menw ether included Durham Count> on two of the four maps she presented to Dr Levine Other 
than to achieve geographical distribution, there was no testimony offered regarding how the decision 
to include or exclude Durham Count> was reached There was no testimony offered to explain why 
the selection of Wake and Orange Counties rather than Durham County and/or other neighboring 



956 7;5> NORTH CAROLINA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



counties better effectuated the goal of achieving geographical distribution. 

There was no testimony offered indicating whether or why Wake County and Guilford County met 
the criteria for inclusion in the group of sites chosen to continue anonymous testing better than did 
the neighboring Durham and Forsyth Counties. 

There was no testimony indicating how the Respondents differentiated amongst the ten to twelve sites 
that provided the greatest number of anonymous testing in the previous year to determine which of 
these high utilization sites would continue to offer anonymous testing. 

The seventeen sites chosen by Dr. Levine do not include any sites in the southern foothills and 
southern heartland sections of North Carolina. 



Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 

oUowing: 

CONCLUSIONS 



The Commission is authorized by statute to adopt niles for the detection, control, and prevention of 
communicable diseases. N.C. Gen. Stat. §130A-147. 

The Commission is also required by statute to declare confinned HIV infection to be a reportable 
communicable condition. N.C. Gen. Stat. §130A-135. In addition, the Commission is specifically 
authorized to establish v\hat information is to be submitted on a communicable disease report N.C. 
Gen. Stat. §130A-141. 

Whether or not to offer confidential or anonymous HIV antibody testing is the ty pe of policy decision 
specifically delegated by statute to the Commission. Any challenge to and review of the Commission's 
policy decision must focus first upon whether the Commission's rule regarding the availability of 
anonymous HIV antibody testing furthers the detection, control, and prevention of HIV infection, and 
second upon whether the sites selected to continue offenng anonymous HIV antibody testing further 
the detection, control, and prev ention of HIV infection 

The Petitioners have argued that the Commission's rule does not aid in the detection, control, and 
prevention of HIV infection because limiting access to anonymous testing impermissibly discnminates 
amongst the class of potentiallv HIV positive individuals bv providing easy access to anonymous 
testing (detection) to some while denying such access to others. 

Clearlv . the State can choose to offer a sen ice to its citizens on a regional basis. Petitioners argue, 
however, that the State does not offer HIV antibody testing on a regional basis. Instead, the State 
offers confidential HIV antibody testing in all one hundred counties and has chosen to limit 
anonymous HIV antibody testing to no fewer than si.xteen sites. 

The Petitioners' contention that there is a distinction between offering a program on a regional basis 
and offering some facets of a program on a regional basis while other aspects of the program are 
available statewide is correct. The Petitioners argue that the State has created a special class of 
citizens who are provided the right (or pnvilege) of obtaining an anonymous HIV test in the county 
of their residence, thereby creating a privacy right which is conditional upon a citizen's county of 
residence and which v iolates the equal protection clauses of both the federal and state constitutions. 



There is. however, no constitutional violation when statutes or regulations which have the effect of 
creating separate classifications prefemng one group over another are rationally related to legitimate 
state interests. Enhancement of the State's abilitA to control a deadlv communicable disease is a 



7:9 NORTH CAROLINA REGISTER August 3, 1992 957 



CO\'TESTED CASE DECISIONS 



legitimate state interest. The issue then is \\hether the selection of certain sites furthers that state 
interest in such a manner that the State's need in promulgating the rule outweighs the burden the ruh 
ma> impose on those persons subject to it. Amencan Financial Senices \ . FTC . 767 F.2d 957, 98; 
(DC. Cir. 1985). 

8. Because the Respondents' actions in promulgating the rule limiting access to anonymous HIV antibod\ 
testing IS a departure from their pre\ ious policy of not only providing anonymous testing statewide 
but also advocating the effectiveness of partner notification in the context of anonymous testing, th' 
basis for the change must be clearly articulated so as to establish a rational connection between the 
factors the Respondents considered and the choices made. The Respondents' proffered rationale foi 
limiting access to anonymous HIV testing is the efficac> of pro\ ider partner notification as a meaii« 
of controlling the spread of AIDS in North Carolina. 

9. The evidence establishes that although provider partner notification may be more effective than relying 
upon infected mdi\ iduals to notify their partners themseh es. such pro\ ider partner notification cannot 
take place unless infected persons present themseh es for testing and are also willing to pro\ide th: 
necessary information about contacts whom the\ may have exposed to the nsk of contracting the HI\ 
infection. 

10. ProMder panner notification cannot take place unless the Respondents ha^e sufficient staff to carr, 
out the post testing counselling and notification, and the e\ idence indicated that DEHXR has not. in 
the past, had sufficient staff to perform partner notification. 

11. If however, those persons with a strong preference for anonymous testing (gay men and IV drug 
users) will submit to confidential testing and w ill pro\ide public health counsellors the names of their 
contacts, and if the Respondents ha\e sufficient staff to cany out the pro\ider partner notification, then 
the Commission's phase out or anonymous testing ma\ m fact further the detection, control, and 
pre\ention of the HI\' infection in this State. Therefore, despite whate\er questions the e\ idence ma_\ 
present about how efficacious pro\ider partner notification will be. limiting access to anom mous 
testing is a polic\ decision that has not been clearl\ shown to be contrarv to law. 

12. The Respondents must still show . however that the sites selected to continue offenng anonymous HI\' 
antibod> testing until September. 1994 enhance the State's ability to detect, control, and pre\enl HI\' 
infection. 

13. In re\iewing the e\idence presented, it is bothersome that the Respondents failed to present e\idence 
that describes how the factors that were considered dunng the site selection process actually resulted 
in the chosen sites. 

14. While It is not the task of the administrati\ e law judge (".ALJ") to determine what decision the .ALl 
sitting as the Respondents would ha\e reached, it is the .ALJ's task to determine whether the 
Respondents ha\e considered the rele\ ant factors and articulated a rational connection between the 
facts the\ considered in making their decision and the choice the\ made. See. Natural Resources 



Defense Council. Inc. w NRC . 462 US S:". 103 S.Ct. 2246. 76 L.Ed 2d 437 (1983). 

15. The absence of the fundamental nexus between the factors the Respondents considered and the actual 
sites chosen is demonstrated by the deficiencies in the e\ idence presented by the Respondents. 

16. Except for Dr. Le\ine's testimon\ about the changes he made in Dr. Menw ether's preferred map and 
the frequent references to achie\ ing geographical distnbution. the Respondents did not present am 
e\idence addressing the specifics of how the factors it considered resulted in selection of the se\enteen 
sites which Dr. Le\ine announced on August 1. 1991. 

17. One of the factors frequently mentioned is that of achie\ ing geographical distnbution. There is little 
or no e\ idence regarding what the optimum geographical distnbution would be. Funhermore. it is 



958 7:9 SORTH CAROLISA REGISTER August 3. 1992 



CONTESTED CASE DECISIONS 



conceivable that any number of various scenarios would achieve geographical distribution. 
Respondents, themselves, generated at least five different maps. (Four produced by Dr Meriwether 
and Dr. Levin's final map). Yet, the Respondents did not present evidence explaining how they 
determined what distnbution across the state best met the goal of maintaining access for those who 
refuse to submit to confidential testing. There was also no e.xplanation regarding how the chosen sites 
could meet the goal of geographical distribution when there were no sites chosen in certain areas of 
the state such as the southern foothills or the southern heartlands. 

The Respondents stated that one of their objectives was to reduce access to those most likely to choose 
anonymous testing, yet it chose to retain some sites in high utilizations areas while excluding other 
high utilization areas without any explanation for why some sites received this treatment and others 
did not. 

Although Dr. Levine considered whether the proposed sites would yield a significant shift or reduction 

in the availability and accessibility of anonymous testing, there was no evidence presented regarding 

how 

Dr. Levine determined that the sites selected would in fact produce the shift or reduction in 

accessibilir\ he sought to achieve. 

The Respondents failed to offer any explanation regarding how it determined which of the four maps 
they developed best met the criteria that were considered in drawing up the maps. 

Those who will be burdened by the effect of the Commission's rule should be able to ascertain 
precisely why they were excluded from the favored treatment afforded others That means that citizens 
of Durham County or of any other county where the Respondents intend to eliminate anonymous HIV 
testing should be able to point to the specific reasons that mandated their exclusion. 

Since the evidence presented at the hearing in this matter shows that the Respondents failed to 
establish a nexus between the criteria that were considered and the actual sites that were chosen, such 
a deficiency is an indication that the choices made were arbitrary and capricious. 

The Respondents failed to establish a nexus betw een the sites chosen and how the selection of those 
sites furthered the detection, control, and prevention of HIV infection. 

Rule 19A.0202(d)(10) of Title 15A of the North Carolina Administrative Code is void as applied in 
this case. 



RECOMMENDED DECISION 

The Commission for Health Senices will make the Final Decision in this contested case. It is 
recommended that the Commission adopt the Findings of Fact and Conclusions set forth above and declare that 
ihe process which resulted in the selection of the seventeen sites that are to continue offering anonymous HIV 
antibody testing was arbitrary and capricious, thereby rendering the rule reducing the number of sites offering 
anonymous HIV antibody testing from one hundred to seventeen void as applied in this case. 



NOTICE 

Before the Commission makes the FINAL DECISION, it is required by North Carolina General 
Statutes section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED 
DECISION, and to present written arguments to those on the Commission who will make the final decision. 

The Commission is required by North Carolina General Statutes section 150B-36(b)to serve a copy 
of the Final Decision on all parties and to furnish a copy to the Parties' attorney of record and to the Office 



7:9 NORTH CAROLINA REGISTER August 3, 1992 959 



COXTESTED CASE DECISIONS 



of Administrative Hearings . 

This the 8th dav of Julv. 1992. 



Brenda B. Becton 
Admimstratn e Law Judge 



96,, 7:9 NORTH CAROLISA REGISTER August 3, 1992 



CONTESTED CASE DECISIONS 



TATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 
OUNTY OF GUILFORD 92 OSP 0679 



STAN BAILEY, ) 

Petitioner ) 



) 

) FINAL DECISION 



) 

HANCELLOR MORAN AND UNC - ) 

REENSBORO, ) 

Respondent ) 



This matter comes on for consideration pursuant to Respondents' Motion to dismiss pursuant to Rules 
2 (b) (1) and 12 (b) (6). 

For reasons discussed below, the Motion to dismiss for lack of subject matter jurisdiction (Rule 12 fb) 
)) is GRANTED. 

Upon re\ iew of the Petition and the attachments to the Petition, and considering all allegations to be 
ue for purposes of this motion, it appears that: 

1 Petitioner was a state employee, employed by the University of North Carolina (UNC-G). The 

parties to this contested case are subject to Chapter 126 of the General Statutes and subject 
to the jurisdiction of the Office of Administrative Hearings and State Personnel Commission. 

2. Petitioner and UNC-G entered into a contract on March 24. 1992. 

3. Pursuant to the contract. UNC-G agreed to reinstate Petitioner to his position at UNC-G. 

4. Pursuant to the contract. UNC-G agreed to pay Petitioner all salan. and fnnge benefits due 
from the date of his separation from employment through March 24. 1992. 

5. Pursuant to the contract. Petitioner agreed to resign his position at UNC-G effective 5;00 p.m., 
March 24. 1992. 

6. Petitioner alleges that Respondents have not executed their contractual obligations. For 
purposes of this motion, the allegation is deemed to be true. 

7. Petitioner is not an employee of UNC-G subject to Chapter 126 of the General Statutes. 

Accordingly, the undersigned concludes that no contested case as defined by Chapter 150B-2 exists; 
lat Petitioner's dispute w ith UNC-G is contractual in nature, and that junsdiction of this case lies with the 
eneral Court of Justice 

Accordingly, it is unnecessar\ to rule on Respondents' motion to dismiss pursuant to Rule 12 (b) (6). 

This the 10th dav of Julv. 1992. 



Thomas R. West 
.Administrali\ e Law Judge 



7:9 NORTH CAROLINA REGISTER August 3, 1992 951 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



I he North Carolina A dministrative Code {NCA C) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCA C is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTEI 



1 


Administration 


Architecture 




2 


2 


Agnculturc 


Auctioneers 




4 


3. 


Auditor 


Barber Examiners 




6 


4 


Economic & Communit> De\ elopment 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 




10 


6 


Council of State 


General Contractors 




12 


7 


Cultural Resources 


Cosmetic Art Examiners 




14 


8 


Elections 


Dental Examiners 




16 


9 


Go\emor 


Dietetics/Nutrition 




17 


10 


Human Resources 


Electrical Contractors 




18 


11 


Insurance 


Electrolysis 




19 


12 


Justice 


Foresters 




20 


13 


Labor 


Geologists 




21 


14A 


Crime Control & Public Safer> 


Hearing Aid Dealers and Fitters 




22 


15A 


Emironment, Health, and Natural 


Landscape Architects 




26 




Resources 


Landscape Contractors 




28 


16 


Public Education 


Marital and Famih Therapy 




31 


17 


Re\enue 


Medical Examiners 




32 


18 


Secretar\ of State 


Midwifen, Joint Committee 




33 


19A 


Transportation 


Mortuan Science 




34 


20 


Treasurer 


Nursing 




36 


21 


Occupational Licensing Boards 


Nursing Home Administrators 




37 


22 


Administrati\ e Procedures 


Occupational Therapists 




38 


23 


Community Colleges 


Opticians 




40 


24 


Independent Agencies 


Optometry 




42 


25 


State Personnel 


Osteopathic Examination & Reg. 


(Repealed) 


44 


26 


Admimstrati\ e Hearings 


Pharmacy 

Physical Therapy Examiners 




46 
48 






Plumbing. Heating & Fire Spnnkler Contractors 


50 






Podiatry Examiners 




52 






Practicing Counselors 




53 






Practicing Psychologists 




54 






Professional Engineers & Land S 


urveyors 


56 






Real Estate Commission 




58 






Refrigeration Examiners 




60 






Sanitarian Examiners 




62 






Social Work 




63 






Speech & Language Pathologists & Audiologists 


64 






VeterinaPv Medical Board 




66 



Note: Title 21 contains the chapters of the \anous occupational licensing boards. 



962 



7:9 NORTH CAROLINA REGISTER August 3, 1992 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1992 - March 1993) 



Pages Issue 

1 - 105 1 - April 

106 - 173 2 - Apnl 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490 5 - June 

491 - 625 6 - June 

626 - 790 7 - July 

791 - 902 8 - July 

903 - 965 9 - August 



ADMINISTRATION 

Auxiliary Services. 4 

Motor Fleet Management Division. 794 

AGRICULTURE 

Gasoline and Oil Inspection Board. 336 
Plant Industry , 904 

Structural Pest Control Committee. 332 
Veterinary Division, 342 

ULTURAL RESOURCES 

U.S.S. Battleship Commission. 911 

CONOMIC AND COMMUNITY DEVELOPMENT 

Bankmg Commission. 629 
Community Assistance. 909 
Departmental Rules. 801 

INVmONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 211, 655 

Departmental Rules, 826 

Environmental Health. 223 

Environmental Management. 190. 416. 500. 644. 830 

Governor's Waste Management Board, 564, 920 

Health: Epidemiology. 140 

Health Services. 52. 659 

Marine Fisheries. 530 

NPDES Permits Notices. 1. 107 

Radiation Protection, 136 

Sedimentation Control. 920 

Vital Records. 565 

Wildlife Resources Commission. 28. 133, 408, 449, 551, 922 

Wildlife Resources Commission Proclamation, 176 

FINAL DECISION LETTERS 

Voting Rights Act, 106, 174, 406, 493, 628, 793 



7:9 NORTH CAROUNA REGISTER August 3, 1992 963 



CUMULA TIVE INDEX 



GOVERNOR/LT. GOVERNOR 

Executive Orders. 401. 491. 626. 791. 903 

HUMAN RESOURCES 

Aging. DiMsion of. 121. 346 

Day Care Rules. 123 

Economic Opportunity'. 5 

Facility Services. 111. 177, 496. 634 

Medical Assistance. 4. 415. 496. 816 

Mental health. Developmental Disabilities and Substance Abuse Sen ices. 111. 297. 409, 809 

Social Ser%ices Commission, 183, 911 

INDEPENDENT AGENCIES 

Housing Finance Agenc\\ 450. 576. 929 

INSURANCE 

Consumer Services Di\ision, 125 

Departmental Rules, 7 

Engineenng and Building Codes, 19. 643 

Fire and Rescue Services Division, 17 

Hearings Di\ision. 124 

Life and Health Division. 22. 347 

Property and Casualty DiMsion. 20 

Seniors' Health Insurance Information Program. 132 

JUSTICE 

Alarm Systems Licensing Board, 27, 189. 643, 919 

General Statutes Commission, 353 

Private Protective Services, 918 

State Bureau of Investigation, 188. 499 

LICENSING BOARDS 

Certified Public Accountant Examiners, 355 

Cosmetic Art Examiners, 360. 922 

Dietetics/Nutntion, 924 

Electrolysis Examiners. 69. 700 

Nursing. 232. 700 

Professional Engineers and Land Sune\ors. 566 

Speech and Language and Pathologists and Audiologists. 705 

LIST OF RLXES CODIFIED 

List of Rules Codified. 72. 362. 452. 584 

PUBLIC EDUCATION 

Elemcntarv and Secondaiy, 852 

REVENUE 

License and Excise Tax, 712 
Motor Fuels Tax Di\ision, 361 

STATE PERSONNEL 

Office of State Personnel. 237. 705 

TAX REVIEW BOARD 

Orders of Tax Re\ iew . 494 



964 7:9 NORTH CAROUNA REGISTER August 3, 1992 



CUMULA TIVE INDEX 



TUNSPORTATION 

Highways. Division of. 228, 856 
Motor Vehicles, Division of. 68, 142 



7:9 NORTH CAROUNA REGISTER August 3, 1992 965 



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